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Current Decisions on State and Federal
Law in Planning and Zoning, Part I
Bruce M. Kramer*
Maddox Professor of Law, Texas Tech University
School of Law, Lubbock, Texas.
§ 1.01 Introduction
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§ 1.02 Land-Use Controls and the Fourteenth Amendment..
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[1] Federal Cases
[a] Village of Willowbrook v. Olech
[b] Forseth v. Village of Sussex
[c] Woodwind Estates, Ltd. v. Gretkowski
[d] Acierno v. New Caste County
[e] Herr v. Pequea Township
[f] McDonald's Corp. v. City of Norton Shores
[g] Vigilante v. Village of Wilmette
[h] Tandy Corp. v. City of Livonia
[i] Scott v. City of Seattle
[j] Burnham v. City of Salem
[k] Odlan Holdings, LLC v. City of New Orleans
[2] State Cases
[a] FM Properties Operating Co. v. City ofAustin
[b] Turbat Creek Preservation, LLC v. Town
of Kennebunkport
[c] Masi Management, Inc. v. Town of Ogden
[d] Hanlon v. Town of Milton
[e] Thorp v. Town of Lebanon
[f] St. Raymond v. City of New Orleans
[g] East Lampeter Township v. County of Lancaster
§ 1.03 Land-Use Controls and the Fifth Amendment
[1] Regulatory Takings
[a] Agripost, Inc. v. Miami-Dade County
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*The author would like to thank Lexis Publishing Co. and the Center for American
and International Law for permission to publish this amended version of a paper that
was presented in the fall of 2000 to the Annual Zoning, Planning & Eminent Domain
Institute sponsored by the Center for International Law.
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SGB Financial Services, Inc. v. Consolidated City
of Indianapolis-Marion County
[c] John Corp. v. City of Houston
[d] Jim Sowell Construction Co. v. City of Coppell
[e] Rau v. City of Garden Plain
[t] Town Council of New Harmony v. Parker
[g] Shemo v. Mayfield Heights
[h] San Remo Hotel L.P. v. City and County
of San Francisco
[i]
City ofAnnapolis v. Waterman
[2] Vested Rights
[a] McPherson v. City of Manhattan Beach
2001
[b]
§ 1.04 Land-Use Controls and the First Amendment
[1] Religion Clauses
[a] Boyajian v. Gatzunis
[b] Concerned Citizens of Carderock v. Hubbard
[c] Mayor and Bd. of Aldermen v. Hudson
[d] Bethlehem Christian Fellowship, Inc. v. Planning
and Zoning Comm 'n
[e] Jesus Fellowship, Inc. v. Miami-Dade County
[t] First Baptist Church of Perrine v. Miami-Dade
County
[2] Free Speech Clause
[a] Adult Entertainment Facilities (AEFs)
[i]
City of Erie v. Pap's A.M.
[ii]
Charette v. Town of Oyster Bay
[iii]
Wise Enterprises, Inc. v. Unified Gov't
of Athens-Clarke County
[iv]
David Vincent, Inc. v. Broward County
[v]
Young v. City of Simi Valley
[vi]
Lim v. City of Long Beach
[vii]
Alameda Books, Inc. v. City of Los Angeles
[viii] Diamond v. City of Taft
[ix]
D.H.L. Associates, Inc. v. O'Gorman
[x]
Ward v. County of Orange
[xi]
Nightclub Management, Ltd. v. City
of Cannon Falls
[xii]
T Backs Club, Inc. v. Seaton
[xiii] Nightclubs, Inc. v. City of Paducah
[xiv] People v. Studio 20, Inc
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McKillop v. Onslow County
City of New York v. "The Black Garter"
Harkins v. Greenville County
P.M. Realty & Investments, Inc. v. City
of Tampa
[xix]
Wise Enterprises, Inc. v. Unified Gov't
of Athens-Clarke County
[xx]
Bugsy's, Inc. v. City of Myrtle Beach
[xxi] Aguirre v. State
[xxii] State v. Russo
[xxiii] Town of Seabrook v. Vachon Management Co.
[xxiv] City of New York v. Warehouse on the
Block, Ltd
[xxv] T & A's, Inc. v. Town Bd. of the Town of
Ramapo
[xxvi] City of Dallas v. North by West
Entertainment, Ltd
[xxvii] Kismet Investors, Inc. v. County of Benton
[xxviii] St. Louis County v. BAP., Inc
[xxix] City of New York v. Les Hommes
[xxx] West End Pink, Ltd. v. City of Irving
Signs and Billboards
[i]
Knoeffler v. Town of Mamakating
[ii]
Adams Outdoor Advertising v. City
of East Lansing
[iii]
Lawson v. City of Kankakee
[iv]
North Olmsted Chamber of Commerce v.
City of N. Olmsted
[v]
City of Painesville Building Dep't v.
Dworken & Bernstein Co., L.P.A.
Marathon Outdoor, LLC v. Vesconti
[vi]
[xv]
[xvi]
[xvii]
[xviii]
[b]
§ 1.05 Subdivision Regulation
[1] Impact Fees
[a] American Fabricare v. Township of Falls
[b] Volusia County v. Aberdeen at Ormond Beach, L.P.
[c] Home Builders Association of Dayton and the
Miami Valley v. City of Beavercreek
[d] Greater Franklin Developers Ass'n, Inc. v. Town
of Franklin
[e] Cimato Bros., Inc. v. Town of Pendleton
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Subdivision Regulation
[a] Ass'n of Rural Residents v. Kitsap County
[b] Equicor Development, Inc. v. Westfield-Washington
Township Plan Comm 'n
[c] Medina County Commissioners Court v.
The Integrity Group
[d] Miles v. Foley
[e] County Council of Prince George's County v.
Dutcher
[f] Heidrich v. City of Lee's Summit..
[g] Village of Key Biscayne v. Tesaurus Holdings, Inc
[h] Hill v. City of Clovis
[i] Smith v. City of Eufaula Planning Comm 'n
[j] Urrutia v. Blaine County
[k] Cathedral Park Condominium Comm. v. District
of Columbia Zoning Comm'n
[1] Davis v. Planning Bd. of the City of Somers Point
[m] Blaha v. Board of Ada County Comm 'rs
[n] City of Colorado Springs v. Securcare Self
Storage, Inc
[0] In re Appeal of Busik
[p] Madison River R. V. Ltd. v. Town of Ennis
2001
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§ 1.01 Introduction
THE PAST YEAR SAW an increase in both state and federal planning and
zoning cases with the number rising near 400 in state cases and over
fifty for federal cases. There were also several Supreme Court decisions
rendered that will have a direct or indirect impact on governmental
regulation of land use, including Village of Willowbrook v. Oleeh. 1 The
federalization of land-use control as it affects the telecommunications
industry was made apparent by the many cases arising under the Telecommunications Act, a trend seen in the past two years. In addition,
there appears to be a growing number of "omnibus" constitutional challenges to zoning decisions based on regulatory taking, substantive or
procedural due process, and equal protection grounds. In most cases I
will report these "omnibus" attacks in the section that appeared to be
the most important to the deciding court. This article follows the basic
1. 528 U.S. 562 (2000).
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outline used in prior years. 2 As in past years I have intentionally omitted
analyzing cases where the main issues are primarily parochial in nature,
although as the author I reserve the right to include cases that may
appear to the reader to be narrow and limited, but due to some quirk
in my personality appeal to my intellectual curiosity.
§ 1.02 Land-Use Controls and the Fourteenth Amendment
[1] Federal Cases
[a] VILlAGE OF WILLOWBROOK v. OLECH3
I have noted an increase in the number of equal protection claims
brought in the land-use context in the past few years. 4 The Supreme
Court has encouraged this type of claim in Olech. Plaintiff widow Olech
sought to connect her parcel to the village's water supply. The village
agreed to do so, but only on the condition that she grant the village a
33-foot easement. Olech objected because she believed village policy
was to require only a IS-foot easement. After a three-month delay, the
village agreed to the connection and only required a IS-foot easement.
Olech then sued under § 1983 asserting that the village spitefully and
intentionally denied her the hook-up because of prior ill will between
village officials and Olech. The issue is whether or not an equal protection claim can be asserted for a "class of one" where no wider class
is alleged to have suffered discrimination.
The Court looked to the purpose of the Equal Protection Clause that
is "to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express
terms of a statute or by its improper execution through duly constituted
agents."s The allegations of the complaint are sufficient to raise questions of fact as to whether the village's demands were "irrational and
wholly arbitrary."6 That is the standard for an equal protection claim
and thus the complaint should not have been dismissed. The Court did
2. See, e.g., Bruce Kramer, Current Decisions on State and Federal Laws in Planning and Zoning, 1999 INST. ON PLAN. ZONING & EMINENT DOMAIN 1-1 [hereinafter
Kramer I]; Bruce Kramer, Current Decisions on State and Federal Law in Planning
and Zoning, 1998 INST. ON PLAN. ZONING & EMINENT DOMAIN 1-1 [hereinafter Kramer II].
3. 528 U.S. at 562.
4. See, e.g., Riley v. Town of Bethlehem, 44 F. Supp. 2d 451 (N.D.N.Y. 1999),
discussed at Kramer I, supra, note I, at § 1.02[I][c], and Jackson v. City of Auburn,
41 F. Supp. 2d 1300 (M.D. Ala. 1999), discussed at Kramer I, supra, note 1, at
§ 1.02[I][d].
5. Olech, 528 U.S. at 564 (quoting Sioux City Bridge Co. v. Dakota County, 260
U.S. 441, 445 (1923)).
6. Id. at 563.
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not agree with the Seventh Circuit's opinion that also found an equal
protection cause of action based on the "ill will" allegations made by
Olech. 7 Justice Breyer, in offering a short concurring opinion, tried to
deal with the village concern that § 1983 actions will be springing forth
like dandelions from run-of-the-mill zoning disputes based on this
rather broad reading of the Equal Protection Clause. Almost by definition, individual zoning decisions treat one landowner differently than
another. If that factual circumstance will allow for a § 1983 action to
be filed, almost every permit denial may end up in federal court. Justice
Breyer would deflect that trip to the federal courthouse by emphasizing
Judge Posner's view that the critical factor is not a wrong or incompetent decision, but the existence of an "ill will" or personal animus
driving the decision. 8 Merely alleging that a decision lacks a rational
basis should not be the basis for filing a § 1983 equal protection claim
according to Breyer. 9
[b] FORSETH v. VILLAGE OF SUSSEX 10
The owners submitted a preliminary plat to the village plan commission
for approval. The plan commission objected to a number of features of
the plat, including its failure to delineate wetlands and the inclusion of
several lots with direct access to an arterial street. Preliminary plat
approval was granted in September 1993. Shortly thereafter a new president of the village board was elected who had openly opposed the
development. The final plat was rejected, due in part to the president's
insistence on a new wetlands survey that showed substantially more
acreage as wetlands than was shown in the preliminary plat. The owners
alleged that the commission, at the president's insistence, conditioned
final plat approval on the sale of a buffer tract to the president at below
market rates. Eventually the final plat was approved and then the owners filed this omnibus § 1983 action alleging substantive due process,
equal protection and regulatory takings claims.
The key issue on the due process claim is whether the Hamilton
Bank ll ripeness doctrine applies. If it applies, not only does the agency
7. The Seventh Circuit opinion is reported at 160 F.3d 386 (7th Cir. 1999). In an
opinion by Judge Posner, the court, at great length, talks about the personal animus of
village officials.
8. See Esmail v. Macrane, 53 F.3d 176, 180 (7th Cir. 1995), a prosecutorial discretion decision that served as the basis for Judge Posner's view in this case.
9. It is interesting to note that Olech has been cited over twenty-five times in federal
court decisions since being handed down in February 2000, most dealing with some
type of local governmental decision affecting a single individual. See, e.g., Hilton v.
City of Wheeling, 209 F.3d 1005 (7th Cir. 2000)(no equal protection claim for alleged
differential treatment by police force and social workers).
10. 199 F.3d 363 (7th Cir. 2000).
11. 473 U.S. In (1985).
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have to make a final decision, but the owner must seek state judicial
relief before filing a federal court action. While there were some earlier
decisions that hinted that Hamilton Bank should not apply to due process claims,12 the type of claim involved here requires the owner to
seek state judicial relief. In essence, the owner is asserting that his
property interest is being taken for a private purpose. Whether couched
as a regulatory taking or as a substantive due process violation, the
policies underlying Hamilton Bank are equally applicable. 13 Clearly
having not exhausted their available state remedies, the owners have
not complied with the exhaustion component of Hamilton Bank. The
court observed that, "[L]itigants who neglect or disdain their state remedies are out of court, period."14 Thus from both the ripeness doctrine
perspective and the substantive law perspective, the Seventh Circuit
makes it difficult to file "garden-variety" land-use cases in federal court
under the guise of substantive due process violations.
As to the equal protection claim, however, the court categorized such
claims as surrogates for takings claims where ripeness would be required or as bona fide claims where the ripeness doctrine is not applicable. Relying on its own decision in Oleck and the clear allegations
of malice and ill will, the court finds that there were sufficient grounds
for the equal protection claim of the owner. There appeared to the court
to be actions bordering on official oppression and misconduct if the
allegations regarding the village board president were proven.
[c] WOODWIND ESTATES, LTD. v. GRETKOWSKI'5
In a case decided a week after Oleck, the Third Circuit reaffirmed its
approach to substantive due process claims and followed the Seventh
Circuit's lead in zeroing in on intentional governmental official misconduct as actionable under the Fourteenth Amendment. Plaintiffs were
developers who sought approval to build a subdivision on 75 acres of
12. See, e.g., Gamble v. Eau Claire County, 5 F.3d 285 (7th Cir. 1993), cert. denied,
510 U.S. 1129, reh'g denied, 511 U.S. 1047 (1994); Himmelstein v. Fort Wayne, 898
F.2d 573 (7th Cir. 1990).
13. The court treated Hamilton Bank as encompassing a "Final Decision" and an
"Exhaustion" requirement. 199 F.3d at 372.
14. 199 F.3d at 373. See also Hager v. City of West Peoria, 84 F.3d 865 (7th Cir.
1996); River Park, Inc. v. Highland Park, 23 F.3d 164 (7th Cir. 1994). The Forseth
approach to ripeness was used in Watson v. Chicago, No. 98 C 6482 2000 U.S. Dist.
LEXIS 5947 (N.D. Ill.), where an owner claimed that Chicago mistakenly demolished
her house pursuant to a "fast-tract" demolition ordinance in violation of both the Fifth
and Fourteenth Amendments. The court dismissed the takings claim because the plaintiff had not sought state court relief but allowed her to recast her due process claim by
amending her complaint.
15. 205 F.3d 118 (3d Cir. 2000). The district court opinion is analyzed at Kramer
I, supra note 1, § 1.02[I][b].
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land. The proposed project involved "low income" housing and the
developer had received substantial tax credits from the state to subsidize
the project. The development plan was originally submitted in March
1996. The attorney for the township planning commission advised the
commission that the plan met all of the subdivision criteria. Opposing
neighbors were also present at the hearing and voiced several objections. They urged that the project be defined as a planned unit development (PUD) and not a straight subdivision. After a six month delay
the commission voted to recommend a denial of the subdivision plan.
The board of supervisors voted unanimously to deny approval. No reasons were originally given until the attorney for the neighbors informed
the board that they needed to provide reasons for the denial. That attorney then drafted a denial letter giving several reasons. The letter, in
slightly amended form, was then sent to the developers. Included in the
letter was the conclusion that the proposal was for a PUD and because
the proposal lacked several ordinance requirements for a PUD, it
needed to be resubmitted within a year as a PUD. The plaintiff then
filed this action asserting that the actions of the commission, board,
and several individual officials violated its substantive due process
rights.
As noted by the district court, the Third Circuit's definition of what
is a protectable property interest under a substantive due process claim
is ill-defined. The Third Circuit has been more willing than other circuits in finding a protectable property interest, if the governmental decision affects the use and enjoyment of property.16 In this case, the
subdivision ordinance is interpreted to give the commission and board
no discretion if the objective standards are met. The facts indisputably
showed that the standards had been complied with. Thus the court finds
that the plaintiffs have a protectable property interest.
Once that determination is made, the developer must show that the
governmental action was "arbitrary, irrational, or tainted by improper
motive."17 Those types of issues are clearly fact issues to be decided
by the trier of fact. The motives of the township in denying the permits
can be reviewed by a jury to determine whether the permits were denied
for an improper purpose. In this case, the defendants had no legitimate
basis for inquiring about the socioeconomic background and income
16. This is to be distinguished from the Second and Seventh Circuits, which apply
a "strict entitlements" approach.
17. 205 F.3d at 124 (citing Bello v. Walker, 840 F.2d 1124 (3d Cir.), cert. denied,
488 U.S. 851 (1988». See also Blanche Road Corp. v. Bensalem Township, 57 F.3d
253 (3d Cir.), cert. denied, 516 U.S. 915 (1995).
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levels of the proposed purchasers of the housing. Likewise, the adoption by the board of a letter proposed by an attorney representing the
opposing neighbors also raises a fact issue at which a jury may look.
The court also refused to uphold the summary judgment as to the liability of the individual officials because there was a fact issue as to
whether they were entitled to good faith immunity. The result in this
case clearly aligns it with the Seventh Circuit in Dlech regarding the
importance of motive in making decisions. While it is often said that
courts are not to look at the motive of legislators, the Third Circuit
decision would allow, if not require, the township officials to be placed
on the stand and be asked questions about why they voted to deny the
subdivision permit. This approach is obviously a two-edged sword. It
may deter bad decisions made by officials for the wrong purpose, but
it also may allow juries to second guess such decisions and open up
legislators to questions that may hinder the legislative process.
[d] ACIERNO v. NEW CASTLE COUNTY's
The owner filed a development plan at a time the parcel was zoned for
planned unit development (PUD). The parcel was downzoned to a residential district that did not allow for the proposed development of 322
apartment units. The owner waived any claims for monetary relief, after
a first round of litigation removed the individual defendants, and the
parties agreed to a trial on the merits of the substantive due process
claim. Unlike Gretkowski,19 which seemingly toughens the Third Circuit's view of what is a protectible property interest, this court goes
back to the position that ownership of property vel non is worthy of
substantive due process protection. 20 Normally one does not have a
vested right or a protectible interest in existing zoning. The downzoning
decision may have been irrational, but certainly under a "strict entitlements" approach it would not be remediable using a substantive due
process theory. Nonetheless the court finds that plaintiff had a protectible property interest in the existing zoning classification.
The second part of the test is whether the downzoning decision was
truly irrational or arbitrary. The owner sought to assert an "improper
motive" test as well, based in part on Gretkowski. But the court distinguished Gretkowski on the basis that it involved administrative actions
taken to enforce existing zoning laws. This case, in part, involves a
18. 2000 U.S. Dist LEXIS 7853 (D. Del.).
19. Gretkowski, 205 F.3d at 118.
20. See also DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592 (3d Cir.), cert.
denied, 516 U.S. 937 (1995).
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legislative rezoning decision and is to be judged solely on whether it
was rationally related to a legitimate government interest. Thus, the
motives of the legislators are irrelevant. 21 The city offered two reasons
for the downzoning: the first would make the parcel more compatible
with the surrounding neighborhood, that was largely single family residential, and the second related to traffic congestion in the area. Both of
these reasons are legitimate governmental objectives and the downzoning decision advances those objectives. Therefore, the substantive due
process claim fails. But as to the decision of the council to void the
record plan of the owner, the court determined it was an administrative
decision, and thus, inquiry into the motive is appropriate. The court did
not grant the relief sought, but asked for further briefing on this issue
in light of the court's earlier finding that the rezoning decision itself
was rationally based.
As to the owner's equal protection claim, the court again noted the
limited judicial review afforded such claims in the absence of a fundamental right or a suspect classification. The showing that the council
did not downzone other land similarly situated does not show irrationality. Because of the traffic and other concerns of the council, the equal
protection claim was likewise barred. A similar finding was made as
to the administrative decision to void the record plan.
Plaintiff finally sought relief under the state law doctrine of equitable
estoppel. Under Delaware law the doctrine could be raised as a defense
against the enforcement of a zoning regulation where: "( 1) a party,
acting in good faith, (2) on affirmative acts of a municipal corporation,
(3) makes expensive and permanent improvements in reliance thereon,
and (4) the equities strongly favor the party seeking to invoke the doctrine."22 There was no evidence in the record showing that the owner
made expensive or permanent improvements on the land. The only
proven expenditure was $38,500 spent on architectural and engineering
fees. The court did not allow the owner to show the acquisition cost of
the site since the acquisition was not made in reliance on any affirmative
act of the city.
[e] HERR v. PEQUEA TOWNSHlp23
This was a substantive due process case arising out of a ten-year battle
by the developer to build a proposed industrial park on 45 acres of
21. The Supreme Court has taken a similar approach in FCC v. Beach Communications, Inc., 508 U.S. 307 (1993).
22. Acierno, 2000 U.S. LEXIS at *29 (quoting Miller v. Bd. of Adjustment of
Dewey Beach, 521 A.2d 642, 645-46 (Del. Super. Ct. 1986).
23. 2000 U.S. Dist. LEXIS 11057 (E.D. Pa.).
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land. 24 In exploring whether the developer has a protectible property
interest, the court does not merely accept the notion that ownership vel
non is sufficient. Instead, the court applies a vested rights analysis to
see whether the developer was entitled to a permit at some time during
the ten-year process. Under Pennsylvania law,25 once a development
proposal is submitted, the regulations in place are not subject to change
for a period of five years after the preliminary plan is approved. Although there was a dispute as to whether the five-year period was tolled,
the court found that the developer has a protectible property interest in
having the now-repealed industrial zoning district applied to the parcel
in question and to a public sewer hook-up.
In applying the second part of the substantive due process test, the
court had no difficulty showing that the rezoning decision was not
arbitrary or irrational. The township had a strong interest in preserving
agricultural land that was served by the rezoning. Then the court went
on to discuss the improper motive aspect of this test, using such language as "tainted by improper motive," "motivated by bias, bad faith
or improper motive," or for "reasons unrelated to the merits."26 Normally this issue must be decided by the trier of fact and is not subject
to summary judgment motions. But in this case the court found no
evidence of bias, improper motive, or bad faith. The fact that several
township officials expressed strong opposition to the development does
not make a prima facie case of improper motive. In fact, the court found
the township acted out of a strong desire to restrain development. That
is not an improper motive and it is not up to a court to second-guess
elected officials on public policy issues. There was no evidence of
injustice or unfairness at a level sufficient to trigger substantive due
process concerns. Therefore, the court granted the township'S motion
for summary judgment.
[f] McDONALD'S CORP. v. CITY OF NORTON SHORES 27
Plaintiff leased a pad in a K-Mart shopping center located in a general
retail zoning district. The ordinance allowed for the operation of a fast
food restaurant. The ordinance also required site plan approval for such
facilities. Plaintiff submitted a site plan showing a drive-through window. Plaintiff had submitted expert testimony and reports showing only
24. An earlier decision of the Pennsylvania Commonwealth Court gives a detailed
version of the litany of administrative and legislative decisions involved over that tenyear period. Pequea Township v. Herr, 716 A.2d 678 (1998).
25. PA. STAT. ANN. tit. 53, § 10508(4)(1).
26. 2000 U.S. Dist LEXIS at *8.
27. 102 F. Supp. 2d 431 (Mich. Ct. App. 2000).
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a minimum amount of traffic flow during peak meal hours. Plaintiff
also showed that in five years the city had only rejected three site plans.
The city eventually rejected a revised site plan because of vehicle and
pedestrian traffic concerns. Plaintiff then filed this omnibus constitutional attack on the city's decision, claiming a regulatory taking, violations of substantive due process, and equal protection rights and pendent state claims.
The court easily dismissed the regulatory taking claim because it is
unripe under Hamilton Bank. 28 Michigan clearly recognized an inverse
condemnation cause of action at the time the federal suit was filed so
plaintiff should have filed this claim in state court. As to the substantive
due process claim, the court applied the deferential review first stated
in Pearson v. City of Grand Blanc. 29 While plaintiff's evidence disputed
the reasons given by the city for rejecting the site plan, the court found
the decision rationally related to the legitimate governmental interest
of dealing with vehicular and pedestrian traffic concerns.
On the equal protection claim, the court initially noted that in zoning
cases, substantive due process and equal protection arguments tend to
merge together. Plaintiff tried to rely on Olech, and its class of one
claim, to attack the city's decision. Again, the court fell back on its
very deferential rational basis review, even after Olech. Plaintiff must
prove that the city treated it differently than others similarly situated
and that there was no rational basis for that difference in treatment.
Even though McDonald's provided evidence of disparate treatment by
the approval of site plans for other fast food restaurants with drivethrough windows and other restaurants in the same area, the court found
that those cases were not similarly situated. None of the drive-through
restaurants abutted the street that the proposed McDonald's was to be
located on and the nearby restaurants that did abut that street did not
have drive-through operations. Thus the court granted the city's motion
for summary judgment and refused to exercise jurisdiction over the
state law claims.
[g] VIGILANTE v. VILLAGE OF WILMETTEJO
In March 1999, plaintiff purchased two parcels of land and demolished
the single family home that had been built on both parcels. She then
sought permission to allow separation of ownership of the two parcels,
28. Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).
29. 961 F.2d 1211 (6th Cir. 1992). There are, however, Sixth Circuit decisions that
do not follow that deferential approach. See Berger v. City of Mayfield Heights, 154
F.3d 621 (6th Cir. 1998); Curto v. City of Harper Woods, 954 F.2d 1237 (6th Cir.
1992).
30. 88 F. Supp. 2d 888 (N.D. Ill. 2000).
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in order to construct two new homes. The village denied the permit and
plaintiff filed omnibus takings, due process, and equal protection
claims. The court followed Hamilton Bank3l and Forseth 32 by applying
the ripeness doctrine to both the takings and substantive due process
claims. Available state remedies must be used however the plaintiff
characterizes her causes of action. Since Illinois allows for an inverse
condemnation remedy for regulatory takings and substantive due process violations, plaintiff must first file her claim in state court. The equal
protection claim was not treated the same as the takings and due process
claims. If the equal protection claim was not a subterfuge for a takings
claim, then Hamilton Bank would not apply. While the plaintiff asserted
that she was being treated differently from others similarly situated; the
court applied the traditional rational basis test because no fundamental
rights or suspect classifications were involved. Merely asserting differential treatment and that plaintiff's proposed development would not
cause any harm does not make a prima facie equal protection case. The
court concluded:
Perhaps the Village is concerned about the character of the neighborhood, something
it does not think was affected by the previous variances, but would be affected by
granting hers. The cumulative effect of small changes, each of which by itself is
insignificant, may make a difference here. 33
A more deferential scope of judicial review is hard to find. The court
clearly is discouraging future claimants from making equal protection
claims in the absence of some type of smoking gun, raising the Olech 34
issue of whether motive is required to show equal protection violations
in the typical land-use scenario.
[h] TANDY CORP. v. CITY OF UVONIA 35
Plaintiff executed an option contract to purchase a tract of land if the
city rezoned the tract from professional office to general commercial
use. The land was rezoned in 1995 and the plaintiff purchased the tract.
In 1997, the city voted to rezone the property back to the professional
office district. At that time Tandy was in active negotiations to sell the
tract, but those fell through with the city rezoning. Plaintiff then filed
an omnibus constitutional suit alleging a regulatory taking and violation
of its substantive due process and equal protection rights. Prior to the
onset of the litigation, the tract of land was sold for an amount that
exceeded Tandy's purchase price by some $300,000.
31.
32.
33.
34.
35.
Hamilton Bank, 473 U.S. at 172.
Forseth, 199 F.3d at 363.
Vigilante, 88 F. Supp. 2d. at 891.
Olech, 528 U.S. at 562.
81 F. Supp. 2d 800 (E.D. Mich. 1999).
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The city argued that Tandy did not have a protectible property interest under the Due Process Clause. In the Sixth Circuit, the owner
must show either a "legitimate claim of entitlement" or a "justifiable
expectation" regarding the commercial zoning of the property.36 The
city strenuously argued that no party has a property interest in an existing zoning classification even where they engage in acts relying on
that classification. But the court found that the actions taken by the
plaintiffs, including the expenditure of substantial funds in reliance on
the existing zoning, were sufficient under Michigan law to create a
protectible property interest.J7 The court's view of what constitutes a
protectible property interest is in line with the Third Circuit's view, but
clearly contrary to the view taken in the First, Second, Seventh, and
Ninth Circuits.
The court found that the Lucas38 regulatory takings claim could not
be sustained where the parcel was sold during the pre-trial period for
over $6 million. The fact that Tandy expected to make a profit on the
sale does not trigger a Lucas taking. The second part of the regulatory
takings test is similar to the substantive due process test, namely
whether the rezoning substantially advances a legitimate state interest.
The city proffered several reasons for the rezoning, including uniformity of zoning for the subject property, compatibility with the surrounding uses, and the development of the area as a corporate park. After a
hard look at the reasons and the alleged nexus between the rezoning
and those interests, the court determined that factual issues remained
that could not be resolved on the city's motion for summary judgment.
The court was clearly influenced by the quick change of heart by the
city and wanted to have a factual record to understand why the land
was rezoned twice in a two-year period.
[i] SCOTT v. CITY OF SEATTL£3 9
Plaintiffs were the owners of several floating structures that were
moored at a recreational marina. The owner of the marina received a
notice of violation (NOY) from the city that the structures violated
various provisions of the city's land-use ordinances. Later, a final land
use order was sent to both the marina owner and the plaintiffs. As a
result of the city's actions the marina owner terminated the leases with
36. Id. at 807.
37. Nasierowksi Bros. Inv. Co. v. City of Sterling Height, 949 F.2d 890 (6th Cir.
1991).
38. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
39. 99 F. Supp. 2d 1263 (W.D. Wash. 1999).
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the plaintiffs, requiring them to move their structures. Plaintiffs then
sued the city alleging that the city's actions violated their due process
and equal protection rights.
The court found that the plaintiffs did not have a protectible property interest because the NOV and the order did not encumber their
property interest in the structures. There can be no deprivation of a
property interest until such time as a court hears the case and determines
that a violation of the ordinance occurred. The order did not affect the
contractual rights or legitimate business expectations of the plaintiffs.
It was the marina owner, not the city, that terminated the leasehold
relationship. The marina owner could have reacted to the NOV and
order in any number of ways. The fact that the owner decided to eliminate the problem by terminating the lease did not mean that the city's
actions caused the plaintiffs to be deprived of their property interests.
Plaintiffs made a second substantive due process claim by contending the city imposed requirements on them, and the marina owner, that
were not contained within the land-use ordinances. Only where actions
of the city would shock the conscience of the court can a party assert
a substantive due process claim. Here the issue was whether the structures were vessels, and thereby exempt from city regulation. The city's
interpretation, according to the court, was reasoned and reasonable in
light of the purposes of the shoreland management statutes. Thus, this
claim must also be dismissed.
Plaintiffs also asserted a procedural due process claim since they did
not receive notice of the NOV and did not participate in the informal
hearings that resulted from the marina owner's discussion of the NOV
with city officials. The informal review process triggered by the NOV
did not lead to the final order. The plaintiffs were given notice of the
order and an opportunity to participate prior to its issuance. The court
also dismissed the equal protection claim under the rational basis test.
Plaintiffs had urged that they were discriminated against because they
owned square-hulled structures that were treated differently than other
seaborne structures. The court found a rational basis for the disparate
treatment. Finally, the court dismissed the pendent state claims because
no federal claims survived the city's motion for summary judgment.
[j] BURNHAM v. CITY OF SALEM40
Plaintiff asserted that the city, through a series of actions taken over a
four-year period, violated the Due Process and Takings Clauses. Some
40. 101 F. Supp. 2d 26 (D. Mass. 2000).
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of the alleged actions include wrongfully removing mooring and tackle
from a river, wrongfully denying various licenses and permits, filing
frivolous lawsuits against the plaintiffs, and refusing plaintiff the right
to repair a broken water main in front of their business.
The court found that for plaintiffs to show a violation of their procedural due process rights, they must prove they had a protectible property interest that the city interfered with without adequate process.
Since almost all of the permits and licenses that plaintiffs sought and
the city denied were discretionary permits, the court concluded that it
was dubious whether they had a property interest in the issuance of
those permits. If plaintiffs were asserting that the defendants illegally
departed from state or locally mandated procedures in making the permit decisions, there was no due process violation, so long as there were
adequate post-deprivation processes available. 41 The evidence showed
that the plaintiffs were able to bring appropriate state court action to
remedy the apparent attempt by the city to remove or eliminate the
plaintiffs business from the city. Thus, the adequacy of postdeprivation remedies was clearly evident so that no procedural due
process violation could be proven. The court refused to allow a procedural due process claim based on "motive or intent" to go to the jury.
A bad faith refusal to follow state law in local administrative proceedings does not constitute a violation of the Due Process Clause, so long
as there are adequate post-deprivation remedies available.
Many of the same factual predicates asserted in the procedural due
process claim were repeated in the substantive due process claim, although the plaintiffs added the lodging of numerous frivolous criminal
complaints against them to this claim. Unlike the procedural due process claim where motive or intent is basically irrelevant, it became the
central issue in the substantive due process claim. The court looked at
what was done, rather than how or when it was done. The court applied
the traditional "shock the conscience" approach to substantive due process and found that even if the plaintiff s alleged facts were shown to
be true and there was a city attempt or crusade to chase the plaintiffs
from the city, that would not constitute a substantive due process violation. The clear hostility between the city and the plaintiff was evident,
but not sufficient to rise to a constitutional violation. The First Circuit's
view of substantive due process traditionally has limited the cause of
action to cases dealing with invasions of personal security or privacy
and not business relationships.
41. See PFZ Props., Inc. v. Rodriguez, 928 F.2d 28 (lst Cir. 1991).
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Finally, the plaintiff alleged that several actions of the city constituted a taking of property without just compensation. The basis for their
claim was that the city's actions did not substantially advance a legitimate state interest. It was clear that no Lucas42 taking was alleged since
the business was still in operation. The physical confiscation of a mooring was done consistent with the city's interest in protecting navigation.
There was no showing that the plaintiffs had a property interest in
keeping the mooring where it was located. Finally, the court found the
placement of some barriers on the plaintiffs land were not a taking
under Loretto43 even though they involved a physical invasion of plaintiff's land. The physical occupation was temporary and plaintiff could
show no injury. That reading of Loretto and First English44 was arguably wrong, in that a temporary taking could have occurred, although
the issue of damages would have been problematic.
[k] ODLAN HOLDINGS, LLC v. CITY OF NEW ORLEANS45
Plaintiff's petition to have a zoning map change from multi-family
residential to some type of commercial district was rejected. Plaintiff
filed this omnibus due process and equal protection challenge. The
court summarily dismissed the equal protection claim because the complaint only included conclusory allegations that are not sufficient as a
matter of law. As to the substantive due process claim, the court also
dismissed the complaint, emphasizing that typical zoning disputes represent "infertile grounds" for due process claims. The court noted that
it would be rare for a party seeking a discretionary permit or decision
to be able to assert a protected property or liberty interest. Requests for
zoning map changes clearly involved the discretionary authority of the
city planning commission, thus negating any substantive due process
claim. The court, however, kept alive the lawsuit for further factual
development of the alleged procedural due process claim based on the
failure of the commission to hold a hearing on plaintiff's request.
[2] State Cases
[a] FM PROPERTIES OPERATING CO. v. CITY OF AUSTIN46
While not involving either the Due Process or Equal Protection Clauses,
this case involves the difficult constitutional problem of unlawful del42.
43.
44.
geles,
45.
46.
Lucas, 505 U.S. at 1003.
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).
First English Evangelical Lutheran Church of Glendale v. County of Los An482 U.S. 304 (1987).
109 F. Supp. 2d 503 (E.D. La. 2000).
22 S.W.3d 868 (Tex. 2000).
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egations of legislative authority. In response to Austin's aggressive
regulation of land use and water quality in their extra-territorial jurisdiction (ETJ), the state enacted a statute that allowed certain landowners to opt out of local regulation upon meeting one of two required
options. 47 The first method was for the landowner to maintain background levels of water quality in the waterways. Monitoring sites had
to be set up to collect water quality data. The second method was to
capture and retain the first 1.5 inches of rainfall from developed areas.
No monitoring was required for the second method. In both cases the
plans had to be developed by a registered professional engineer. Review
by the Texas Natural Resources Conservation Conunission (TNRCC)
differed depending on the size of the acreage. For parcels between 5001,000 acres, the owners had to submit their water quality plans to
TNRCC for approval. For parcels over 1,000 acres, the plans were
effective immediately upon recordation, although TNRCC had an opportunity to review those plans. TNRCC review is limited to seeing if
the plans will meet one of the two options. Landowners may amend
their plans from time to time. TNRCC may deny approval of these
amendments only if it finds that the amended plan will impair the
achievement of the plan's objectives. A landowner may appeal a
TNRCC denial and the burden of proof is on TNRCC. The plans and
review by TNRCC are not subject to public hearings. Once a water
quality zone is designated for all municipal land use, water quality or
environmental control ordinances that are inconsistent with the zone
and its plan are not enforceable. Further restrictions on municipal action
include the city may not collect fees or assessments or exercise the
power of eminent domain within a zone until it annexes the zone. But
a city may not annex an area covered by a plan until 90 percent of the
plan's facilities have been completed or twenty years have passed since
the zone was designated. The city sued several landowners in its ETJ
who sought plan designations under the statute. The city's claim was
based on several theories: the unconstitutional delegation of legislative
power to private owners; the violation of municipal home rule provisions in the Texas Constitution; and that the statute was an impermissible special or local law. The majority opinion only dealt with the facial
nondelegation challenge. 48
47. TEX. WATER CODE § 26.179.
48. Justice Baker wrote for the six-justice majority. Justices Owen and Hecht filed
separate dissenting opinions joined in both by Justice Abbott. The open and at times
quite personal disagreements between the majority and dissenting opinions are reflected
in the following quotes: "Most of Justice Owen's dissent is nothing more than inflammatory rhetoric, and thus merits no response." FM Properties, 22 S.W.3d at 877. Justice
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After noting, and then ignoring, the presumption of constitutionality
in facial challenges, the majority made the necessary finding that the
legislature had in fact delegated its plenary legislative authority to private landowners. Legislative authority involves the making of laws of
private conduct and setting public policy. The legislature may delegate
that power to coordinate branches of government, or even to private
individuals or institutions without violating the constitution's reservation of that power to the legislature. 49 The majority found that the power
to exempt themselves from otherwise applicable police power regulation constituted a delegation of legislative power to the private landowners. 50 Clearly the state, in other circumstances, has reserved to itself
the power to regulate water quality issues. Giving the landowners the
power to make those decisions relating to matters of public interest
must constitute a delegation of legislative power.
Once a delegation is found, the court applied the eight-factor Boll
WeevilS! analysis to determine if the delegation was valid. These eight
factors are:
1. Are the private delegate's actions subject to meaningful review
by a state agency or other branch of state government?
2. Are the persons affected by the private delegate's actions adequately represented in the decision making process?
3. Is the private delegate's power limited to making rules, or does
the delegate also apply the law to particular individuals?
4. Does the private delegate have a pecuniary or other personal interest that may conflict with its public function?
5. Is the private delegate empowered to define criminal acts or impose criminal sanctions?
6. Is the delegation narrow in duration, extent and subject matter?
7. Does the private delegate possess special qualifications or training
for the task delegated to it?
8. Has the Legislature provided sufficient standards to guide the private delegate in its work?52
Owen responds in kind: "I am at a loss to understand what is driving the court's opinion,
since it clearly is not reasoned decision-making. I know only that the court today
exercises raw power to override the will of the Legislature and of the people of Texas."
[d. at 889.
49. The court has struggled in the past few years with this delegation issue. See
Proctor v. Andrews, 972 S.W.2d 729 (Tex. 1998); Texas Boll Weevil Eradication
Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997).
50. Justice Abbott in his dissent argued that there was no delegation, an argument
he also unsuccessfully made in the Boll Weevil Foundation case.
51. Boll Weevil, 952 S.W.2d at 454.
52. FM Props., 22 S.W.3d at 874.
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Any time a court develops a multi-factor analysis one must ask whether
the court is engaging in a judicial or legislative function. The court
noted that there is not a hierarchy within the eight factors, although the
court did suggest that several factors should be weighed more heavily
than others. The court found that the first and fourth factors are particularly important in private delegation cases because of the potential
impact on the public interest. Not surprisingly, the majority found that
both of those factors weigh against the statute's constitutionality. Delegations of power to private bodies, such as accreditation agencies,
national standard setting commissions, and ADR organizations are
widespread. Applying an eight-factor test to each of these types of
delegations may require the court to take an intrusive role in making
what are essentially policy decisions regarding the size and powers of
governments. In Texas, which lacks a history of strong governmental
regulatory bodies, delegation to private entities has been a way to avoid
empowering governmental entities. This decision, as well as the Boll
Weevil decision, will make it hard for the state government to use surrogate private parties to achieve desired goals. In this case the court
could have attempted to affirmatively limit the powers of home rule
cities in their ETJs. Instead, they chose to empower private parties to
exempt themselves from those powers. That option appears to be foreclosed to the legislature in the future.
[b] TURBAT CREEK PRESERVATION, LLC v. TOWN OF
KENNEBUNKPORp3
A developer purchased a parcel containing four cottages and a boathouse. It obtained a permit to renovate the four cottages and sell them
as separate condominium units. The application did not separately identify the boathouse as a separate residential unit. Evidence showed that
the boathouse had been occasionally used for overnight stays and a
gathering place for residents and guests in the cottages. The developer
obtained a permit to modernize the boathouse. The submitted plans did
not show an intent to change its use to a residential unit. Nonetheless,
the developer made extensive renovations making the boathouse usable
for seasonal residential use. Several years later the plaintiff was served
with a notice of violation of the town's zoning ordinance.
The developer asserted two due process violations. The first was that
the town attorney appeared at the zoning board of appeals (ZBA) hearing stating that he was representing the enforcement official and not
the ZBA. The second was that the chair of the ZBA had prejudged the
53. 753 A.2d 489 (Me. 2000).
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case by preparing in advance an outline of issues and potential findings
based on extra-record evidence. The court found that neither allegation
was sufficient to violate the procedural due process rights of the developer. The attorney's role in the proceeding was appropriate and the
pre-hearing review of materials was not prejudicial to the developer's
rights.
Under the town's zoning ordinance, the boathouse was located in a
resource protection zone where no residential uses are allowed. Only
if the boathouse was a nonconforming use (NCU) could it continue to
be used or rebuilt. In reviewing the ZBA's decision not to treat the
boathouse as a NCU, the court applied the substantial evidence test.
Only if the proposed use as a guesthouse was the use that existed prior
to the enactment of the zoning ordinance will it qualify as a NCU. The
developer argued that the only change was a change in the intensity of
the use not the type of use. The court found, however, substantial evidence in the record to support the ZBA's finding that the present use
was far in excess of the occasional overnight use that had occurred in
the distant past. Even if the use was of the same kind, the evidence
also showed that there had been a non-use of the boathouse for any
purposes for a period in excess of twelve months. Under the zoning
ordinance such a period of disuse constituted an abandonment of the
NCU. Finally, the court rejected the developer's equitable estoppel
claim based on the issuance of the renovation permit because the developer affirmatively misled the town official regarding the scope of
the planned renovations.
[c] MASI MANAGEMENT, INC. v. TOWN OF OGDEN54
Last year I analyzed the lower court opinion in this case that challenged
on due process and equal protection grounds various decisions of the
town that were allegedly taken to delay action on the plaintiffs development proposal in order to favor a competing developer's proposa1. 55
The court agreed with the lower court opinion that no substantive due
process claim was asserted since plaintiff did not have a legitimate
claim of entitlement to the continuation of the multi-family zoning
classification that had attached to the land he was seeking to develop.
It was entirely within the discretion of the town to determine how to
provide housing units for senior citizens. The court refused to expand
the substantive due process cause of action to include decisions moti54. 709 N.Y.S.2d 734 (N.Y. App. Div. 2000), aff'g, 691 N.Y.S.2d 706 (N.Y. Sup.
Ct. 1999).
55. See Kramer I, supra note 1, § 1.02[2][f].
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vated by ill will or bad faith since that would federalize all local landuse decisions where an allegation was made that a decision was made
under questionable or unfair circumstances. III will or improper motive
are relevant considerations under the plaintiff's equal protection claim,
but the court found that the plaintiff failed to show that the town acted
"with an evil eye and an unequal hand, so as practically to make unjust
and illegal discriminations between persons in similarcircumstances.~'56
Without citing either the Supreme Court or Seventh Circuit decision in
Olech57 the court seemed to embrace the Seventh Circuit standard that
emphasized motive as the gravamen for an equal protection claim in
the land-use context.
[d] HANLON v. TOWN OF MILTON'S
In 1990, Hanlon sought a conditional use permit (CUP) from the town
to operate a gravel quarry on his agricultural property. The CUP was
denied, although at the same meeting two other CUP applications were
approved, both being sought by members of the planning and zoning
committee. State court review reversed the town's decision and led to
a second decision in 1994 that again denied the CUP. A second round
of state judicial review led to an eventual affirmance of the decision.
In 1997, Hanlon then filed this action in federal court under § 1983
alleging that the town deprived him of his due process and equal protection rights by its failure to approve the CUP. The district court
granted the town's motion for summary judgment. The Seventh Circuit
then sought an answer to the following certified question: "when a
municipal administrative determination gives rise to an equal protection
claim for money damages actionable under § 1983, must this equal
protection claim be brought and heard in a Wis. Stat. § 68.13 certiorari
proceeding brought by the litigant?"59
The town argued that failing to bring the equal protection claim in
the state court action required the federal court to dismiss the action
based on claim preclusion. The court found that while a certiorari proceeding to review a local zoning decision may raise constitutional
claims to prove that the decision was unreasonable, arbitrary or oppressive, that is not the same as bringing a § 1983 equal protection
action seeking monetary damages. Remedies under the state procedure
only affect the local decision. They do not include any possibility of
56.
57.
58.
59.
Masi Mgmt., 709 N.Y.S.2d at 736.
O/ech, 528 U.S. at 562.
612 NW.2d 44 (Wis. 2000).
Id. at 47.
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receiving money damages. Since the issue of monetary damages could
not have been raised in the state court action, the § 1983 claim could
not have been part of that proceeding. In addition, the failure of the
plaintiff to voluntarily join the separate § 1983 claim with the state
court review action, does not preclude him from bringing a later federal
action. Certiorari review is limited and cannot be expanded to include
the type of damages sought under § 1983. While joinder was possible,
failure to join will not preclude the plaintiff from filing separate state
and federal actions.
[e] THORP v. TOWN OF LEBANON60
The Thorps owned a 255-acre tract of land that prior to 1994 was zoned
for rural development. At that time the town engaged in a comprehensive revision to its zoning ordinance. The town requested that the
county amend its official zoning map to incorporate the town's changes.
The Thorp tract was reclassified to general agricultural uses. The
Thorps challenged the rezoning and simultaneously filed a request to
rezone the nonwetlands and floodplain areas. The town voted to rezone
approximately 165 acres back to rural development. The county, however, refused to go along with the town's rezoning decision and voted
to maintain the general agricultural classification. Plaintiffs then filed
an omnibus § 1983 action in state court alleging a regulatory taking
and substantive due process and equal protection violations.
The court initially had to deal with the town's assertion that by failing
to comply with Wisconsin's notice of claim statute relating to litigation
against local governments, the trial court lacked jurisdiction. When a
party brings a § 1983 action claiming a violation of constitutional or
statutory rights under color of state law, the party need not exhaust its
state remedies and need not comply with whatever state procedural
hurdles normally attach to suing a local governmental entity.61 In
addition, the court found that the plaintiffs had complied with the notice
of claim provision through their various actions prior to filing this lawsuit.
The court noted the traditional two tests for showing equal protection
violations, namely the compelling state interest test for suspect classifications and fundamental rights, and the rational relationship test for
everything else. The court found that the complaint's allegations regarding the bias of at least one member of the county board was suf60. 612 N.W.2d 59 (Wis. 2000). The court of appeals decision, 593 N.W.2d 878
(Wis. Ct. App. 1998), is analyzed at Kramer I, supra note I, § 1.02[2][g].
61. Felder v. Casey, 487 U.S. 131 (1988).
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ficient to withstand the county's motion for summary judgment. In
addition, the plaintiffs asserted that the topography af their tract was
ill-suited for agricultural uses, evidence of a lack of a rational relationship between the classification and the governmental objective. A plaintiff in an equal protection case does not have to exhaust state judicial
or administrative remedies. The court noted that at trial the burden on
the plaintiff to prove the lack of a rational relationship will be difficult
to meet. The plaintiff must show that the ordinance is unconstitutional
beyond a reasonable doubt.
The court held that plaintiffs had not stated a claim for a substantive
due process violation. The plaintiff must prove that there has been a
deprivation of a liberty or property interest that is constitutionally protected. Plaintiff asserted that the town's rezoning efforts had not complied with state law. The plaintiff in this case had no property interest
involving the statutory procedures required to be met before a zoning
ordinance could be amended. The gist of the substantive due process
claims were the same as the equal protection claims. Where a specific
constitutional provision can be relied on, rather than the general provision relating to due process, the specific claim will essentially subsume the general claim. Finally, the court found that there was no procedural due process claim because the state provided an adequate
post-deprivation remedy of judicial review of improper zoning decisions through the certiorari process.
[f] ST. RAYMOND v. CITY OF NEW ORLEANS62
Plaintiff owned a lot located in a duplex residential zone. Over a negative recommendation by the city planning commission, the city council enacted an ordinance issuing to the plaintiff a conditional use permit
(CUP) to construct three townhouses on the lot. The ordinance contained several conditions or provisos and waived several setback requirements. The ordinance was to have "legal force and effect" only
when the provisos were fully complied with. Two amendments to the
ordinance extended the period of time when construction had to begin.
Several years after the last deadline had passed, plaintiff sought a ruling
that the ordinance was still valid even though the townhomes had never
been built. The plaintiff listed several activities he asserted met the
ordinance requirements for development. The city notified the plaintiff
that his CUP had not expired and then issued him a building permit.
The plaintiff began construction and apparently did substantial work
62. 767 So. 2d 697 (La. App. 2000). writ denied, 769 So. 2d 570 (La. 2000).
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leading to the pouring of the foundation when the city issued a stop
work order. Notwithstanding other stop work orders, the plaintiff continued to build and got a restraining order against the city from the trial
court to prevent them from interfering with his development. The trial
court, however, refused to grant plaintiff a preliminary injunction
against the city.
The basis for the plaintiff s claim for an injunction was that he had
a vested property right in the building permit. But Louisiana law, like
most states, does not treat the issuance of a building permit as conferring a constitutionally protected property right. 63 If a building permit
was issued in error, the permit owner does not have a right to prevent
the city from revoking or rescinding the permit. The permit was issued
in error because the city attorney who wrote the memorandum finding
that the CUP had not expired was wrong. There had not been sufficient
development work done within the period of time set by the earlier
ordinances. The only work accomplished within the time frame was
the pouring of the sidewalk. That was insufficient to keep the CUP
alive. The completion of work after the stop work orders were issued
was not sufficient to show irreparable injury. Even if the plaintiff was
misled by the city's action, a preliminary injunction should not issue
since monetary damages can fully compensate the plaintiff for his
injuries.
[g] EAST LAMPETER TOWNSHIP v. COUNTY OF LANCASTER64
In 1986, Mr. Hondares, an African-American, purchased two contiguous tracts of land. At the time of the purchase both tracts were zoned
for commercial use. The front tract was used to operate a retail store.
In 1990, the township engaged in a comprehensive rezoning that reclassified the rear tract to rural while maintaining a commercial classification for the front tract. Hondares petitioned the township board of
supervisors to rezone the rear tract back to commercial, but they refused. No further appeal was taken. Mr. Hondares was using the rear
tract as a residence in apparent violation of the ordinance, but the township had never sought to enforce its ordinance. In 1993, he filed a
complaint with the Lancaster County Human Rights Commission asserting that the township had discriminated against him because he was
Black. Before the commission could hold any hearings, the township
sought a declaratory judgment that the commission did not have juris63. See St. Charles Ave. Corp. v. City of New Orleans, 704 So. 2d 909 (La. App.
1997), writ denied, 712 So. 2d 881 (La. 1998).
64. 744 A.2d 359 (Pa. Commw. Ct. 2000).
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diction over the Hondares claim. When the township refused to rezone
the rear tract, it acted in a legislative capacity. Courts and administrative
agencies exercising adjudicatory powers do not have any power to interfere with the legislative process. Under the state zoning law, decisions to rezone are entrusted to the board of supervisors with appropriate resort to the courts provided for. This type of attempted collateral
attack was not authorized by statute. The commission would have no
power to remedy the alleged discriminatory treatment since it could not
rezone the tract. The commission lacked the power to review the legislative decision of the township.
§ 1.03 Land-Use Controls and the Fifth Amendment
[1] Regulatory Takings
[a] AGRIPOST, INC. v. MIAMI-DADE COUNTY65
Plaintiff was issued a permit from the county board of commissioners
in 1987 to operate a waste disposal facility. Plaintiff had been a successful bidder to construct a facility that would create an environmentally safe end product from the solid waste. Plaintiff also received a
variance containing several conditions since the facility was located in
an agricultural zone. Four years later, however, the county zoning appeals board revoked the permit, after receiving complaints upon the
operation. The board determined that the plaintiff had failed to comply
with several of the conditions. Upon direct state judicial review, the
revocation decision was upheld. Plaintiff then filed this action asserting
a regulatory takings claim against the county. The trial court dismissed
the action as unripe under Hamilton Ban/('6 since plaintiff had not pursued a state inverse condemnation claim. The county had argued that
under the Rooker-Feldman67 doctrine only the Supreme Court of the
United States has jurisdiction to review final decisions from a state's
highest court. It also argued that under either the issue or claim preclusion doctrines the case should be dismissed on the merits. The county
sought to avoid the plaintiff's filing of a state court inverse condemnation claim, something the plaintiff did shortly after the district court's
opinion.
While normally the prevailing party does not have standing to attack
a judgment or order, in this case the county was injured by the district
65. 195 F.3d 1225 (11th Cir. 1999), cert. denied, 531 U.S. 815 (2000).
66. Hamilton Bank, 473 U.S. at 172.
67. Rooker v. Fidelity Trust Co. 263 U.S. 413 (1923); D.C. Ct. App. v. Feldman,
460 U.S. 462 (1983).
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court's handling of its issue or claim preclusion claims. The court
agreed with the district court that the earlier state court litigation did
not act to prevent the plaintiff from filing a state inverse condemnation
claim. The court found that the earlier state court proceeding did not
deal with the regulatory takings claim and that it lacked authority to
hear it since it was the permit revocation decision that allegedly constituted a regulatory taking. Because the legitimacy of that revocation
decision was not finally determined after the state court proceeding was
final, plaintiff would not be precluded from filing a new regulatory
takings claim in state court. Obviously, Hamilton Bank precluded plaintiff from bringing a federal takings claim, since Florida provides for an
inverse condemnation remedy. In addition, since the earlier state court
proceeding did not deal with the takings issue, the district court had
subject matter jurisdiction to determine that the issue was not ripe for
review under the Rooker-Feldman doctrine.
[b] SGB FINANCIAL SERVICES, INC. v. CONSOUDATED
CITY OF INDJANAPOUS-MARJON COUNTY68
Plaintiff was the owner of a 286-unit apartment complex. Starting in
1996, it sought to sell or refinance and renovate the complex. No proposals or bids were received when in April 1997 the parcel was placed
on the city's "acquisition list" under the state's urban redevelopment
law. Under the law, the city could either negotiate a purchase of the
parcel, condemn it through an eminent domain proceeding, or do nothing. Two city appraisals listed the value of the parcel at around
$900,000. The plaintiff's appraisal came in at $3.2 million. The city
also provided information to several prospective purchasers or redevelopers of the complex regarding the high crime rate and what the city
had appraised the parcel for. While the city disclosed its appraisals to
third parties, it refused to disclose its appraisals to the plaintiff. Plaintiff
then filed this claim asserting that the city's actions constituted a regulatory taking and impeded its ability to sell the parcel for its listed
purchase price of $2.6 million.
The plaintiff tried to avoid the Hamilton Bank!'9 ripeness doctrine by
asserting the futility exception. An Indiana state court decision had
found that a city's actions in declaring an area "blighted" and placing
the parcel on the acquisitions list does not constitute a regulatory taking. 70 The fact that a single decision by an intermediate appellate court
68. No. IP 98-977-C HlG, 2000 U.S. Dist. LEXIS 7204 (S.D. Ind. Feb. 7, 2000).
69. Hamilton Bank, 473 U.S. at 172.
70. Reel Pipe & Valve Co. v. Indianapolis, 633 N.E.2d 274 (Ind. App. 1994), cert.
denied, 513 U.S. 1058 (1994).
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appears to be contrary to the position of the plaintiff does not make the
state inverse condemnation futile, unavailable, or inadequate. Hostility
of the state court system to the type of regulatory taking claim asserted
by the plaintiff is not sufficient to avoid Hamilton Bank's requirement
of seeking state court relief prior to the filing of the case in federal
court. Where the state procedure exists, the property owner must avail
itself of the procedure and be denied an inverse condemnation award
before the case will be ripe for federal court review.?)
[c] JOHN CORP. v. CITY OF HOUSTON12
In 1991, the city had issued demolition orders covering an apartment
complex. In 1995, John Corp. agreed to purchase the complex from the
owner for $1.9 million. Plaintiff entered into discussions with the city
regarding its rehabilitation plans for the complex. During this time period there was a fire on the premises and eventually the city demolished
about two-thirds ofthe buildings within the complex. Plaintiff then sued
the city for violating various of its constitutional rights, as well as, the
rights of the sellers. The district court dismissed all plaintiff's constitutional claims.
The court treated many of the plaintiff's claims as essentially regulatory takings. The alleged activities of the city in dealing with the
plaintiff and then demolishing the buildings, involved a claim that the
regulation went too far. Once classified as regulatory takings, the claims
have to fail under the Hamilton Bank?3 ripeness doctrine. Only if the
demolition was accomplished for a private purpose might the federal
courts hear the case prior to a state court. Thus, the district court was
correct in dismissing the bulk of the plaintiff's claims.
The court then found that the substantive due process claims raised
by the plaintiff should not have been dismissed because they were different from the regulatory takings claims. Rather than subsuming the
due process claims into takings claims, the court treated them separately.?4 The allegations in the complaint that the ordinance authorizing
71. See also Forseth, supra § 1.02[lHb], and Hager v. City of W. Peoria, 84 F.3d
865 (7th Cir. 1996).
72. 214 F.3d 573 (5th Cir. 2000).
73. Hamilton Bank, 473 U.S. at 172.
74. There is a split of authority on the melding or separating of due process and
takings claims. Compare S. County Sand & Gravel v. S. Kingstown, 160 F.3d 834 (1st
Cir. 1998)(no separate takings and due process claims); Macri v. King County, 126
F.3d 1125 (9th Cir. 1997), cert. denied, 522 U.S. 1153 (1998)(same); Bateman v. W.
Bountiful, 89 F.3d 704 (10th Cir. 1996)(same), with Berger v. Mayfield Heights, 154
F.3d 621 (6th Cir. 1998)(separate takings and due process claims); Restigouche, Inc.
v. Jupiter, 59 F.3d 1208 (II th Cir. 1995); Villager Pond, Inc. v. Darien, 56 F.3d 375
(2d Cir. 1995), cert. denied, 519 U.S. 808 (1996); Taylor Inv., Ltd. v. Upper Darby
Township, 983 F.2d 1285 (3d Cir.), cert. denied, 510 U.S. 914 (1993).
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the demolition of the building were sufficient to state a cause of action
under the Due Process Clause. Those claims are different than the regulatory takings claims and are ripe for review without the need for filing
a claim in state court.
[d] JIM SOWELL CONSTRUCTION CO., INC. v. CITY OF COPPELL 75
Plaintiff brought a regulatory takings claim against the city after the
city downzoned land where the plaintiff had planned to construct an
apartment complex. Earlier orders had dismissed the takings claims,
finding that the regulation substantially advanced a legitimate state interest and did not deny an owner economically viable use of the land.
Plaintiff urged that Del Monte Dunes76 required the court to take a hard
look at the city's downzoning decision to see if it substantially advanced a legitimate state interest. The court found that Del Monte
Dunes did not reverse the traditional presumption of validity and the
placement of the burden of proof on the party challenging the ordinance. The more rigorous scope of judicial review applicable to exactions does not apply to normal land-use regulations, including downzoning amendments. In addition, heightened scrutiny does not apply to
legislative decisions, while it may, under certain circumstances, apply
to adjudicatory decisions. Plaintiff alleged that the downzoning was
racially motivated because the proposed multi-family development was
going to contain some low- and moderate-income units. The city responded with reasons for the downzoning that were unrelated to the
potential racial make-up of the apartment complex. Under the soft
glance approach taken to these type of cases, the court found that the
city's decision substantially advanced a legitimate state interest.
Plaintiff also made a claim that the city's decisions violated its vested
right to develop that was created by Texas statutes. 77 The city admitted
that the vested rights statute required the city to apply the ordinance in
existence when the permit request was originally filed. But the court
found that the statute did not create a cause of action for money damages. Instead the remedies are limited to declaratory, mandamus, or
injunctive relief. The court then dismissed this state law claim as well.
[e] RAU v. CITY OF GARDEN PLAIN78
The city downzoned plaintiff's parcel from light commercial to residential. Plaintiff then filed a state lawsuit making a § 1983 claim that
75. 2000 U.S. Dist. LEXIS 9869 (N.D. Tex. July 12,2000), clarifying, 61 F. Supp.
2d 542 (N.D. Tex. 1999), and 82 F. Supp. 2d 616 (N.D. Tex. 1998).
76. City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).
77. See TEX. GOy'T. CODE ANN. §§ 481.141.
78. 76 F. Supp. 2d 1173 (D. Kan. 1999).
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the city had violated her due process, equal protection, and regulatory
takings rights. The city filed a motion to remove the case to federal
court based on federal question jurisdiction and then moved for summary judgment on all plaintiff's § 1983 claims.
The underlying basis for the motion for summary judgment was that
the claims were not ripe for review. Kansas law provided two means
of attacking the judgment in state court. The first was a statutory review
procedure to determine the reasonableness of the zoning order or determination. The second was a claim for inverse condemnation. It was
unclear under Kansas law whether such a claim can be made for a
zoning ordinance that went too far. Nonetheless, Kansas does recognize
the inverse condemnation cause of action. The plaintiff did include in
the state complaint a claim that the ordinance was unreasonable. But
the plaintiff also included the regulatory takings claim that was both
unripe under Hamilton Bank79 and was the grounds for removing the
case. Plaintiff needed to have filed in state court, either, or both of the
statutory review, or inverse condemnation cases, without alleging a
§ 1983 cause of action.
The court also dismissed the substantive due process and equal protection claims as unripe. Where these claims are really offshoots of the
regulatory takings claim, the more particularized protection of the Takings Clause applies as does the Hamilton Bank ripeness doctrine. 8o As
to the procedural due process claim, the Hamilton Bank ripeness doctrine normally does not apply. But as asserted by the plaintiff in this
case, the procedural due process claim was directly related to, and thus
coextensive with, the regulatory takings claim. Thus, the procedural
due process claim was also dismissed as unripe. Because all of the
federal claims were dismissed, the court remanded the state claim under
Kansas' statutory review to the state court for its determination. Only
rarely should a federal court review local zoning decisions where a
state court can otherwise exercise jurisdiction. 8l
[f] TOWN COUNCIL OF NEW HARMONYv. PARKERS2
Two separate tracts of land were subdivided and platted in 1871 and
1874. About 100 years later, Parker purchased several of those lots.
79. Hamilton Bank, 473 U.S. at 172.
80. See Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717 (10th
Cir. 1989), abrogated on other grounds, Federal Lands Legal Consortium v. U.S., 195
F.3d 1190 (10th Cir. 1999). Graham v. Connor, 490 U.S. 386 (l989), provided the
basis for the rule that allows the due process and equal protection claims to be subsumed
within the regulatory takings claim.
8!. See also Norton v. Vill. of Corrales, 103 F.3d 928 (lOth Cir. 1996), analyzed
at Kramer II, supra note 2, § 1.03[IHd).
82. 726 N.E.2d 1217 (Ind. 2000).
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Some ten years later, Parker asked the town to extend various utilities
to the lots. The town agreed to do so if Parker would pay the pro rata
share of the costs of extending those utilities as provided by state statute. That offer was never accepted. Shortly thereafter, the town placed
a chain across the street that dead-ended at the Parker tract because of
numerous complaints from neighbors that vehicles were running off the
end of the paved street and onto the parcels. Parker then filed this action
claiming that the town was obligated to provide utilities at its own
expense and that the placement of the chain constituted a regulatory
taking.
After surveying basic regulatory takings law, including Lucas83 and
Penn Central, 84 the court analyzed the town's action in placing the chain
across the street. While the Parker parcel was subdivided, the court
treated it as one inclusive parcel of undeveloped land. There are no
paved streets leading into the Parker tract. The town action did not
deprive Parker of access to her property, as it was still accessible from
a wide variety of streets and rights of way. The chain was located over
the street and thus there was no physical invasion of the Parker tract.
The second regulatory takings claim allegedly arose when the town
zoning official indicated that he would not issue any building or location improvement permits for the tract. There was, in fact, no permit
application from Parker. In addition, there was no appeal of a permit
denial to the board of zoning appeals (BZA). Thus because Parker failed
to exhaust her administrative remedies, the trial court lacked subjectmatter jurisdiction to hear her constitutional claims. The court refused
to apply the futility exception to the exhaustion requirement that that
exception is to be narrowly construed. The purpose of seeking a permit
is to give the court a decision that can be reviewed so as to properly
adjudicate the as-applied regulatory takings claim. The court noted that
the BZA might have developed an alternative to the denial decision,
including a conditional approval based on factors unique to the parcel.
The third regulatory takings claim allegedly arose when the town
refused to extend utility services without the assessment of costs. In
this situation the court applied the Penn Central analysis of reasonable
investment-backed expectations. When Parker purchased the lots she
was charged with knowledge of the existing city ordinances and state
statutes dealing with utility services. She could only have expected that
the town would either grant or deny developmental permission and
83. Lucas. 505 U.S. at 1003.
84. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).
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utility services based on its stated policy of requiring reimbursement
for costs. The state authorized the town to levy assessments for the
provision of utility services and when the town exercised its power,
there was no regulatory taking.
[g] SHEMO v. MAYFlEW HEIGHTS85
The owners of a 22.6-acre parcel bordered by commercial and residential uses, as well as an interstate highway challenged the residential
zoning classification for the site in June 1995. The parties stipulated
that the existing zoning classification was unconstitutional, but that the
city reserved the right to rezone the property. The city rezoned the
parcel to a cluster single family residence zone (SFR). The owners then
challenged the rezoning decision and urged that they were entitled to
have their lands zoned for commercial and warehouse uses. While the
case was on appeal the Ohio Supreme Court decided to separate out
the two prongs of the Agins86 taking test, namely whether the ordinance
deprives the owner of an economically viable use and whether the ordinance fails to advance a legitimate governmental interest. 87 Only the
economically viable use test is employed in dealing with a regulatory
takings claim. Likewise, only the advancement or reasonable relationship test is used where a due process claim is made.
In this case, the trial court found that the cluster SFR zoning classification did not meet the reasonable relationship standard, even after
allocating the burden of proof to the owners. The court of appeals had
remanded the case to the trial court to apply the separate tests, but the
supreme court determined that the ordinance was unconstitutional and
therefore no remand was required. The court reviewed the trial court
judgment, not the rezoning decision. The city argued that under the
deferential "fair debate" standard used in Ohio, the rezoning ordinance
was reasonably related to several legitimate public objectives including
maintaining the residential character of the neighborhood, maintaining
a mixed blend of uses and preventing undue traffic congestion. The
court employed a Nectow-type 88 hard look at the individual rezoning
decision, discounting the adjacent residential uses by focusing on the
adjacent commercial uses located near the interstate highway. Evidence
was proffered by the city showing concern by the residents of the adjacent homes regarding the commercial development of the area. The
85. 722 N.E.2d 1018 (Ohio 2000).
86. Agins v. City of Tiburon, 447 U.S. 255 (1980).
87. See Goldberg Cos. v. Richmond Heights City Council, 690 N.E.2d 510 (Ohio
1998), and Gerijo, Inc. v. Fairfield, 638 N.E.2d 533 (Ohio 1994).
88. Nectow v. City of Cambridge, 277 U.S. 183 (1928).
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court found that insufficient even under the fair debate standard. The
court suggested that the externalities from the commercial development
could be minimized through buffering requirements. The court found
that the city's traffic congestion claims were unsupported by the evidence. The court also rejected the claim that the owners of the tract
created their own hardship in developing the area for residential use by
selling off portions of the tract at earlier dates. The court minimized
the self-imposed hardship argument by saying that the owners made
legitimate business decisions that should not be held against them when
determining the validity of the rezoning ordinance. With this case, Ohio
places itself in the Illinois camp of scrutinizing very closely zoning
decisions that limit the developmental potential of a site, while stating
that their scope of judicial review is deferential.
[h] SAN REMO HOTEL L.P. v. CITY AND COUNTY OF SAN FRANCISCO 89
The hotel asserted that the application of the amended hotel conversion
ordinance in 1990 constituted a regulatory taking. The hotel property
was developed in 1906. It had a long history of both tourist and longterm residential use. The hotel was extensively refurbished in the early
1970s to continue the dual use. Under the terms ofthe 1990 ordinance,
the hotel would be prohibited from renting rooms to tourists unless it
paid the city a $567,000 conversion fee or provided suitable replacement housing and received a conditional use permit (CUP). The in lieu
fee was based on the city's finding that all of the units were being used
for long-term residents at the time the first hotel conversion ordinance
was enacted in 1979. The hotel first instituted litigation in the federal
court, but the Ninth Circuit determined that it was more appropriate for
the litigation to take place in state court. 90 The city filed a demurrer
claiming that the hotel had not stated a cause of action for a regulatory
taking.
The court initially had to determine the appropriate scope of judicial
review of the conversion ordinance. The hotel asserted that the higher
level of scrutiny employed by Nollan/Dolan 91 for impact fees and applicable in California through the Ehrlich92 case should be used. The
imposition of discretionary fees by a governmental body presents an
inherent and heightened risk that the local government will manipulate
the police power to impose conditions for which it would otherwise
89. 83 Cal. App. 4th 239, 100 Cal. Rptr. 2d 1 (2000).
90. San Remo Hotel v. City and County of San Francisco, 145 F.3d 1095 (9th Cir.
1998).
91. Nollan, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).
92. Ehrlich v. Culver City, 50 Cal. Rptr. 2d 242, 911 P.2d 429 (1996).
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have to pay just compensation. The court found the fees imposed here
are analogous to the types of fees imposed in NollaniDolanlEhrlich. In
order to qualify for a CUP to rent rooms to tourists, the hotel was under
the same type of duress as the owners in those three cases. Thus, the
heightened scrutiny analysis should be applied. The in lieu fee here was
clearly set at a level to fund replacement housing that the city wanted
to provide. That type of decision was the type that the Supreme Court
felt warranted closer scrutiny to avoid overreaching.
The court found that the demurrer should not have been granted by
the trial court as to the as-applied regulatory taking claim. The court
applied the dual NollaniDolan test of requiring the city to prove that
there was both an essential nexus between the permit condition, or in
lieu payment, and the public impact of the proposed development and
that a rough proportionality existed between the magnitude of the fiscal
exaction and the effects of the proposed development. The allegations
of the hotel were sufficient to raise factual issues on both questions.
While the court readily admitted that providing low- and moderateincome housing was an important governmental objective, the hotel
raised questions about the nexus or relationship between the replacement housing and the fee requirement and that objective. There was a
substantial factual dispute as to whether the hotel in 1981 and 1990
was completely committed to residential as opposed to tourist units.
The city presumed that it was entirely a residential operation, but if it
was not, the nexus between continued use of tourist units and the socalled replacement fee was unclear at best. Likewise, there were substantial questions about the proportionality of the imposed fee since it
was predicated on that same presumption. 93 The earlier cases upholding
the hotel conversion ordinance did not address the as-applied regulatory
takings claim made here by the hotel. The court also found that the
payment of the fee under protest did not constitute a waiver of the
hotel's right to make its regulatory takings claim.
The hotel also sought a writ of mandate that it was a valid nonconforming use (NCU) and therefore did not have to get a CUP from the
city in order to rent rooms to tourists. The court reached a different
view as to the effect of the certification of rooms made by the city at
the time of the enactment of the conversion ordinance than did the court
in Tenderloin Housing Clinic. 94 In that case the court found that the
93. In an analogous situation the New York Court of Appeals found a hotel conversion ordinance invalid in Seawall Assocs. v. City of New York, 74 N.Y.2d 92, 544
N.Y.S.2d 542 N.E.2d 1059, cert. denied, 493 U.S. 976 (1989).
94. Tenderloin Housing Clinic is analyzed infra § 1.07[l][a][v].
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hotel had achieved a NCU status based on the certification by the city
that it was renting rooms to tourists without the hotel having to prove
that it was actually engaged in that type of room rental business. In this
case, the court found that the certification order was not determinative
of whether there was a legal NCU in existence. The court looked to the
underlying zoning ordinance and found that there was no distinction
made between residential and tourist hotels. Thus even though the certification decision showed no tourist use, it may have had that right
when the conversion ordinance was enacted. If the use of the premises
for tourist rentals was allowed, it would have been a valid NCU. The
court remanded the issue to the trial court to take evidence on whether
the hotel property was actually used for tourist rentals prior to the
enactment of the ordinance.
[i) CITY OF ANNAPOUS v. WATERMAN9S
Plaintiff purchased a three-acre tract of land in the mid-1970s with the
purpose of developing it in three phases. As part of the first phase
development approval process the developer agreed to provide 2,375
square feet of recreational space in an appropriate location as part of
the future development of the last two phases. When the second phase
was approved it did not contain that recreational space. The third phase
plat was submitted in 1990. The plat designated a 4,598-square-foot
recreational easement that ran behind the proposed eight duplex units.
Both the staff and the planning and zoning commission recommended
denial of the plat because of alleged density and traffic problems and
violation of the recreational space condition. The board of appeals
upheld the commission's findings, based in part on its conclusion that
the easement dedication would cause each of the lots to fall below the
minimum size required by the ordinance. The trial court. reversed the
board's decision. While this litigation was ongoing, the city amended
its zoning ordinance to require site design review prior to subdivision
approval. On remand from the trial court, the city applied site design
review to the proposal and conditioned its approval of the plat on leaving one of the new lots vacant. The city also required that the 2,375
square feet of recreational space be located on that lot. The plaintiff
responded by filing this regulatory takings claim asserting that the original condition created an unconstitutional taking. The trial court found
that a taking had occurred by focusing on the decision's impact solely
on the single lot.
95. 745 A.2d 1000 (Md. 2000).
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The city's zoning and subdivision ordinances emphasize the need for
open space. The site design plan review procedures also attempt to
maximize the amount of available open space and give the city the
power to reject such plans that do not achieve compatibility with safety,
efficiency, and attractiveness standards. The use of conditions on subdivision plats to achieve legitimate public objectives was well recognized in Maryland. The court distinguished between common law dedications and mandatory dedications. Common law dedications involve
an offer to dedicate and an acceptance by a local government while
mandatory dedications arise from the exercise of the police power. The
recreational land requirement is not a dedication because the proposed
space was not intended for general public use. Thus, the requirement
is a condition, not a dedication. While a dedication requires a developer
to transfer title to a governmental entity, a condition merely limits the
method in which a property owner may thereafter use his property. The
court examined Maryland law to see whether it was more appropriate
to apply the MahoniLucas 96 or NollaniDolan 97 tests to the city's condition. It determined that the NollaniDolan test would not be applicable
where there was no dedication or transfer to the government. The real
issue is whether a valid public purpose existed for the condition and
whether the end result is to leave the owner with no remaining viable
economic use of the totality of his land. In applying the MahonILucas
test the court dealt with the denominator problem. The lower courts
had focused on the single lot that was to hold the open space. This
court determined that at least the entire third-phase property must be
included and hinted that the entire three phases must be considered
since the owners have received substantial economic benefits from sales
of lots during the first two phases. Since the remaining duplex lots
clearly retained substantial value, there was no evidence to support a
finding of a regulatory taking by the imposition of the condition to
provide recreational space for future residents of the subdivision.
[2] Vested Rights
[aJ McPHERSON v. CITY OF MANHATTAN BEACH98
In September 1990, the city approved a vesting tentative subdivision
map and corresponding CUP to permit the construction of four beachfront condominiums on a double sized lot. In January 1991, the city
amended its zoning ordinance that lowered by several feet the maxi96. Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922); Lucas, 505 U.S. at 1003.
97. Nollan, 483 U.S. at 825; Dolan, 512 U.S. at 374.
98. 93 Cal. Rptr. 2d 725 (Cal. Ct. App. 2000).
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mum height limitation on multi-family buildings. In September 1991
the final plat was submitted and approved shortly thereafter. The plat,
however, was never recorded because the developer had not paid the
requisite property taxes and had not submitted some additional data.
The developer did nothing until 1996 when it submitted the data and
paid the delinquent taxes. It sought a CUP in 1997. Plaintiffs opposed
the CUP saying it violated the 1991 amendment lowering maximum
heights. The developer argued that he had a vested right to develop
under the ordinances in effect when he submitted his tentative subdivision plat. The city took the position that under its ordinances any
vested right expired three years after the developer failed to record the
final approved plat. The developer argued that the city ordinance terminating vested rights was preempted by the state Subdivision Map
Act99 that vests right at the time of the filing of the tentative map. But
since the city ordinance does not deal with the time of vesting, but
merely extinguishes the right upon failing to record after the final map
has been approved, the court found no preemption. The court also found
that the automatic termination effect of the city ordinance did not violate the state statute that requires notice and a hearing prior to the
municipal determination as to a final plat. The state statute dealt with
the approval/disapproval decision on the final plat. The city ordinance
only dealt with the post-approval action of recording the plat. There is
no state requirement that a hearing must be held where the developer
failed to meet a clear condition subsequent that would terminate his
vested right to develop.
§ 1.04 Land-Use Controls and the First Amendment
[1] Religion Clauses
[a] BOYAJIAN v. GATZUNIS 100
Defendant church initially purchased an 8.9-acre parcel of land in the
Town of Belmont and conducted religious services in a small building
for several years. The area was zoned for residential use. The church
then sought a discretionary permit to build a much larger religious
facility. Religious uses are allowed as of right in the zone, but the permit
was sought in order to exceed the allowable height limit. Under state
law,101 zoning regulations may not restrict the use of land for church
purposes, but may impose reasonable regulations on such a use. The
99. CAL. GOV'T CODE § 66410.
100. 212 F.3d 1 (lst Cir. 2000).
101. MASS. GEN. LAWS ch. 40A, § 3.
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town after several public hearings issued the permit. Plaintiffs are
neighbors who claim that the state statute and municipal ordinance
violate the Establishment Clause of the U.S. Constitution.
The court reviewed both the statute and ordinance under the threepart Lemon test. 102 It was conceded that the statute did not foster excessive governmental entanglement with religion so the court focused
on the first two parts, whether the statute has a secular legislative purpose and does not have as its principal or primary effect the advancing
or inhibiting of religion. The claim was that giving religious organizations a preferred zoning status, by essentially exempting them from
use regulation violated the Establishment Clause. While the history of
the enactment of the statute reflected a legislative attempt to reverse a
town's exclusion of churches and religious schools, the First Circuit
concluded that the statute fits within the boundaries of "benevolent
neutrality" required by the interstices of the Establishment and Free
Exercise Clauses. The statute's principal purpose was to prevent discrimination against religious uses. There is no implied endorsement of
religion or a specific religion in a statute that tries to remove discriminatory treatment. 103 The statute was amended after its initial enactment
to include uses other than religious uses. Therefore, there is no argument under the extant version that the statute's primary effect is to
enhance religion. Where a state chooses to prevent its local governments from treating religious uses as nonresidential in character, it is
not favoring religion. While the Free Exercise Clause would not require
a state to adopt a statute like the one here, the state is free to prevent
local governments from erecting barriers to communal worship. The
town ordinance that was amended in response to the enactment of the
state statute, specifically authorized religious uses in residential zones.
Treating the ordinance, no differently than the state statute that spawned
102. Lemon v. Kurtzman, 403 U.S. 602 (1971).
103. The dissenting judge who also applied Lemon concluded that the statute was
not merely intended to erase discriminatory local actions, but was originally designed
to provide a direct benefit to religious uses. Massachusetts could have passed a statute
barring local discrimination as opposed to a statute exempting them from local use
regulation. This special treatment goes too far in providing benefits and not merely
lifting burdens on the free exercise rights of the churchgoers. Boyajian, 212 F.3d at
11-12 (Toruella, J. dissenting). The Supreme Court is still struggling with the parameters of the Establishment Clause as reflected in Mitchell v. Helms, 530 U.S. 793 (2000),
a parochial school aid program where there was a four-judge plurality opinion, a twojudge concurrence, and a three-judge dissent. The plurality opinion would sweep away
most Establishment Clause precedent and apply a Smith-type neutrality test so that if
government aid is supplied to both public and parochial schools there is no constitutionality claim. The plurality disagree with that sweeping neutrality test and suggest
that the court has always considered other factors in resolving Establishment Clause
problems. The dissent wants a clearer test that is truer to the wall of separation concept.
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its passage, the court found no Establishment Clause violation regarding the town's state-mandated decision to allow such uses in residential
zones.
[b] CONCERNED CITIZENS OF CARDEROCK V. HUBBARD 104
Plaintiffs were homeowners and prospective neighbors of a synagogue
that was given a building permit to construct a house of worship and
support facilities on a 5-acre parcel. Under the county's zoning ordinance, churches and other places of worship were permitted uses in
single-family residential zones. Other types of charitable, philanthropic
or social organizations were not allowed uses in such zones. But other
types of nonsingle family residential uses were allowed such as embassies, mobile homes, utility lines, bed and breakfast lodgings, and
home offices. Plaintiffs alleged that the ordinance violates the Establishment Clause by endorsing religion through its treatment of churches
as a permitted, as opposed to a conditional, use.
The court applied the Lemon test, notwithstanding the fact that courts
and commentators had announced its demise for the past twenty years.
The county argued that the ordinance had a secular purpose, namely
the fostering of development that is harmonious and compatible with
single-family residential use. Merely because other compatible uses are
excluded or subject to a conditional use permit process does not make
the exemption one that has a religious purpose. The ordinance was
treated as being neutral, even though it specifically named churches and
houses of worship as constituting a permitted use. The exemption given
churches was also given to nonreligious uses providing sufficient evidence that the ordinance was neutral. In fact, the ordinance required
religious organizations that operated private clubs or nonreligious activities to get a conditional use permit if they wanted to locate those
facilities in a single-family zone. The ordinance and the permit issued
pursuant thereto are both valid actions under the Establishment Clause.
[c] MAYOR AND BOARD OF AWERMEN V. HUDSON105
A church sought to be designated as a public/quasi-public facility under
the city's zoning ordinance in order to apply for what the court labeled
a "conditional use variance" (CUV). The church wanted to expand its
facilities and parking lot. The board voted to grant the church's request.
Several neighbors participated in the board's public hearing opposing
the CUy. They brought this action challenging the board's decision.
104. 84 F. Supp. 2d 668 (D. Md. 2000).
105. 774 So. 2d 448 (Miss. App. 2000).
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Under Mississippi law, the scope of judicial review of local zoning
decisions is quite restricted and subject to being overturned only if
arbitrary, capricious, or illegal. The party challenging the decision
shoulders a heavy burden of proof and the board decision will be upheld
under the classic "fairly debatable" standard. Under the city's ordinance, churches and other religious organizations can be designated as
public facilities. In dealing with the church's expansion plans, the board
can consider the impact on the surrounding neighborhood and take
whatever steps it deems appropriate to minimize any negative effects.
The board decision clearly met the "fairly debatable" test since the
board was weighing the various factors that go into the issuance of the
CUV and the designation of a public facility. The trial court decision
that had reversed the board's decision was in error and amounted to a
substitution of judgment by the trial court for the board, a result not
warranted under Mississippi's limited scope of judicial review.
[d] BETHLEHEM CHRISTIAN FELLOWSHIp, INC. v.
PLANNING AND ZONING COMM'NI06
Plaintiff executed a contract to purchase a parcel of land subject to the
receipt of getting a discretionary permit from the town in order to construct a meetinghouse. There was a time limit placed on how long the
plaintiff could take to secure the permit. Because the permit decisionmaking process took longer than expected, several extensions of the
agreement were made. The Planning and Zoning Commission (PZC)
denied the permit request and plaintiff sought judicial review. The town
argued that the plaintiffs lacked standing to appeal since the late for the
option contract to be exercised had passed.
The court viewed the standing issue as one of aggrievement. The
party claiming standing must demonstrate a specific personal and legal
interest in the subject matter of the decision and must also establish
that this interest has been adversely affected by the governmental decision. At the time the plaintiff filed the first appeal, the purchase and
sale agreement was still in effect. It was no longer in effect when the
trial court decision was rendered. The court treated the agreement in
this case as a purchase and sale agreement with a condition precedent,
as opposed to an option contract. In cases where an option contract
expires prior to judicial resolution of the zoning issue, there is no aggrievement. But where you have a purchase and sale agreement, even
where there is a specified period of time for performance, that period
may be extended for a reasonable time, since time is not of the essence
106. 755 A.2d 249 (Conn. App. Ct. 2000).
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in real estate purchase contracts. The parties to the contract treated it
as being in full force and effect during the court proceedings, even
though the time specified in the contract had been passed. Thus, the
plaintiff still was an aggrieved party who had standing to challenge the
denial of the permit by the commission.
[e] JESUS FEllOWSHIP, INC. v. MIAMI-DADE COUNTYlO7
The church owned a 12.2-acre tract in a residential area zoned for SFR
use on a minimum one-lot parcel. They sought a special exception to
expand the existing religious facilities and to start a new private school
and day care center. The planning staff recommended denial of the
permit but the zoning appeals board voted to conditionally approve the
permit. Further appeal to the county commission was made by neighbors who objected to the board decision. The commission voted to
conditionally approve as well, but lowered the maximum number of
students from 524 to 150 and limited the school to kindergarten through
sixth grade. The trial court, upon the church's appeal, affirmed the
commission's conditional approval.
The court found that the trial court decision applied the wrong scope
of judicial review. Where an applicant for a special exception shoulders
the burden of producing evidence that the proposed use is consistent
with the land-use plan, the burden shifts to the county to show through
substantial evidence why the permit should not be issued. In this case,
the commission's decision to further lower the enrollment figure and
limit the grades offered was not supported by any competent, relevant
evidence in the record. The only witnesses before the commission either
provided irrelevant testimony or lay testimony that could not be treated
as expert testimony on technical subjects. Therefore, the court reversed
the trial court's decision and rendered a decision that the permit as
conditioned by the board should be issued.
[f] FIRST BAPTIST CHURCH OF PERRINE v. MIAMI-DADE COUNTY 108
The church operated an elementary school on its property. It sought
two discretionary permits and a sign variance in order to expand the
107. 752 So. 2d 708 (Fla. Dist. Ct. App. 2000). See also Miami-Dade County v.
New Life Apostolic Church of Jesus Christ, Inc., 750 So. 2d 738 (Fla. Dist. Ct. App.
2000), where the appellate court reinstated the county's decision not to issue a series
of variances to a church to establish a church sanctuary and daycare center after that
decision had been overturned by the trial court. The appellate court found that there
was substantial evidence in the record to support the variance denial decision based on
such negative externalities as noise, traffic, and deleterious impact on nearby residences.
108. 768 So. 2d 1114 (Fla. Dist. Ct. App. 2000).
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school to include a seventh and eighth grade that would also result in
an increase in enrolled students from around 500 to 650. The planning
staff recommended that the permits and variance be issued. At the public hearing before the county's community zoning appeals board, neighborhood opposition to the expansion project surfaced. Specific questions about the required traffic study were raised. Under Florida law,
the applicant for a discretionary permit bears the initial burden of producing evidence that its proposal is consistent with the county's landuse plan. Once that burden is satisfied, the burden of producing evidence is shifted to the opponents to show that the application does not
either meet the performance standards or that the proposal is contrary
to the public interest. In this case the board rejected the permit application because there was no church-introduced evidence on the issue
of traffic impacts. That is a requirement under the zoning ordinance.
The church also argued that the board's decision violated the Florida
Religious Freedom Restoration ACt. 109 They argued that the ruling restricted the free exercise rights of its congregants and that the county
had not shown a compelling state interest to support that restriction.
Relying on Lukumi Babalu Aye, 110 the court rejected the application of
the compelling state interest test to an admittedly neutral ordinance.
The requirements of the ordinance relating to traffic impacts for discretionary permits is clearly neutral regarding religious conduct. In fact,
the court noted that if the county modified its requirements for churches
it might run into an Establishment Clause problem. The court also
found that the board decision did not prevent or seriously inhibit the
church's ability to provide religious education. There may be other
locations that do not have the same type of traffic problem as the present
location. In addition, it may try to accommodate the expansion into the
higher grades by lessening the enrollment in the lower grades so as not
to need a building expansion and as not to create substantial traffic
impacts.
[2] Free Speech Clause
[aJ ADULT ENTERTAINMENT FACILITIES (AEFS)
[i] City of Erie v. Pap's A.M. III
The city enacted an ordinance prohibiting public nudity, based in large
109. FLA. STAT. §§ 761.02-.05.
110. Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).
111. 529 U.S. 277 (2000). This is a typical fractured First Amendment decision.
Seven of the Justices agreed that the case was not mooted by the closing of the AEF.
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part on the type of ordinance found constitutional in Barnes. 112 Notwithstanding the similarity between ordinances, the Pennsylvania Supreme Court had found the ordinance unconstitutional on First Amendment grounds because it unduly burdened the AEF owner's rights of
free expression. 113 The plurality opinion finds that nude dancing is entitled to limited First Amendment protection. By targeting conduct, the
ordinance is content-neutral and therefore the Pennsylvania court
should not have applied a strict scrutiny, less onerous alternatives analysis. The plurality treated the ordinance as not a total ban on nude
dancing, but merely a limit on one type of nude dancing that has as its
primary objective the prevention of secondary effects. Thus, the plurality applied the O'Brien 114 four-part test of whether the governmental
regulation is within the constitutional power of the government to enact,
whether the regulation furthers an important or substantial governmental interest, whether the governmental interest is unrelated to the
suppression of free speech, and whether the restriction goes no further
than is necessary to achieve that objective. The concurring opinion
would find that as a content neutral ordinance of general applicability,
no First Amendment protections adhere to the conduct being proscribed. As Justice Scalia observed: "[E]ven if one hypothesizes that
the city's object was to suppress only nude dancing, that would not
establish an intent to suppress what (if anything) nude dancing communicates."IIS The remaining Justices all would have applied a higher
level of scrutiny to the ordinance under the First Amendment, with
Justice Stevens particularly concerned about the extension of RentonI16
to nonlocational decision situations. While not as fractured as Barnes,
the Supreme Court is still quite divided on the basic approach to First
Amendment issues relating to nudity and/or sex. It is clear that Renton
is alive and well insofar as it treats secondary effects as some sort of
talisman against judicial interference with municipal attempts to rid
themselves of AEFs. Yet it is unclear what is the appropriate First
But only four Justices, O'Connor, Rehnquist, Kennedy, and Breyer, joined in the plurality opinion. Justices Scalia and Thomas wanted to apply the Smith rationale that the
First Amendment does not apply to a general law regulating conduct and not directed
at expression. Justice Souter concurred in part and dissented in part and Justices Stevens
and Ginsburg dissented.
1I2. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
lB. Pap's A.M. v. City of Erie, 719 A.2d 273 (1998). The court followed the
O'Brien test and found the ordinance content-based. It said it could not find any controlling decision in Barnes due to the fact that eight opinions were filed.
114. United States v. O'Brien, 391 U.S. 367 (1968).
115. Erie, 529 U.S. at 310.
1I6. Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
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Amendment approach. It appears that the "fiction" that ordinances such
as this are content-neutral will continue to be the bedrock for dealing
with regulation of AEFs.1I7
[ii] Charette v. Town of Oyster BaylIs
An AEF operator sought injunctive relief against the enforcement of
an AEF ordinance. The first round of litigation led to a remand for
development of a sufficient record to see whether the ordinance meets
the Renton l19 guidelines. Under the ordinance, cabarets were allowed
in two of the three business districts. The AEF in this case was located
in the district where restaurants and similar businesses are allowed. The
operator claimed that his AEF was a similar type business allowed in
the district by receipt of a discretionary permit. The town argued that
cabarets are only allowed in the two districts where they are specifically
listed. The court did not apply the traditional Renton or Freedman analyses to determine whether injunctive relief was appropriate. It mainly
determined that since the AEF was located in a district in which it was
not allowed, there was no First Amendment violation. The operator
argued that the discretionary permit requirement for live entertainment
in the district violated the First Amendment because of the unbridled
discretion given the decision-makers as to whether to issue a permit,
along with the fact that there were apparently no time limits on the
permit issuing process. Disregarding the fact that the town had argued
in an earlier phase of the trial that live entertainment was allowed in
the district after receipt of a discretionary permit, the court interpreted
the ordinance as totally prohibiting AEFs from the location owned by
the operator. Therefore, the court determined that the operator had not
117. See also People v. Foley, 94 N.Y.2d 668, 731 N.E.2d 123, 709 N.Y.S.2d 467
(2000) where the court upheld a conviction under a statute criminalizing the dissemination of indecent material to minors against a charge that it was overbroad as applied
to certain Internet communications. Unlike the federal Communications Decency Act
invalidated in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the New
York Penal Code punishes not the mere transmission of certain types of communication, but adds several requirements including showing an intent to induce or invite
activities affecting minors. The court also found that the statute was content-based but
because it was speech used to further the sexual exploitation of children it was not
protected by the First Amendment.
118. 94 F. Supp. 2d 357 (E.D.N.Y. 2000), on remand from, 159 F.3d 749 (2d Cir.
1998). See also DJL Rest. Corp. v. City of New York, 271 A.D.2d 275, 706 N.Y.S.2d
395, app. denied, 735 N.E.2d 1283 (N.Y. 2000) (The court found that the New York
City AEF ordinance was not preempted by the state alcohol law because the AEF
ordinance only has an incidental effect on those holding liquor licenses.).
119. Renton, 475 U.S. at 41.
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met its burden of proof for a preliminary injunction and that it was
likely to win on the merits.
[iii] Wise Enterprises, Inc. v. Unified Gov't of Athens-Clarke
County120
In 1997 the county amended its AEF ordinance by not allowing AEFs
in the central business district (CBD) zoning district and by prohibiting
the sale of alcohol on premises holding an AEF permit. The plaintiff,
a preexisting AEF, sought an alcoholic beverage license and an AEF
permit. The county informed the plaintiff that it could not get both
permits. Under prior Eleventh Circuit decisions, governments can prohibit AEFs from qualifying for alcoholic beverage licenses as long as
the regulation is content neutral. 121 The alcohol restriction only restricts
the place or manner of nude dancing without focusing on the content
of the message contained therein. Likewise, the court relies on Erie 122
and its findings that bans on public nudity are content neutral. The
ordinance contained a lengthy preamble evincing the county's intent
to deal with the secondary effects of AEFs and the sale of alcoholic
beverages.
The court then applies the four-part O'Brien 123 test without much
scrutiny. It rubber stamps the county's decision to prohibit the combination of nude dancing and the sale of alcohol as going no further than
is necessary to achieve the important governmental objective of preventing the secondary effects of AEFs. The court also found that there
was no evidence that the ordinance was enacted with the purpose of
discouraging nude dancing or hindering the communicative effects of
nude dancing. The county commissioners must have been very restrained in their discussions regarding the enactment of the ordinance
or were "wood-shedded" by the county attorney to minimize any invective against the evils of nude dancing. Finally, the court has no
difficulty upholding the county decision to eliminate AEFs from the
CDB zone. Applying the Renton l24 standard, there were apparently
other zoning districts where AEFs were allowed and thus the ordinance
was upheld.
120. 217 F.3d 1360 (11th Cir. 2000).
121. See Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, reh 'g denied,
156 F.3d 188 (11th Cir.), cert. denied, 529 U.S. 1052 (2000).
122. Erie, 529 U.S. at 277.
123. United States v. O'Brien, 391 U.S. 367 (1968).
124. Renton, 475 U.S. at 41.
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[iv] David Vincent, Inc. v. Broward County125
In 1993, the county adopted an AEF ordinance that imposed permit,
building and siting requirements on AEFs. Plaintiffs represented several
adult bookstores and live dancing establishments that were affected by
the ordinance. Plaintiffs initially sought a preliminary injunction
through the state court system, but that relief was denied. They then
filed this federal action claiming that the ordinance was both unconstitutional per se and unconstitutional as applied. 126 On the per se unconstitutional claim, the plaintiffs were faced with a prior Eleventh Circuit
decision upholding an earlier version of the AEF ordinance. 127 Two
changes had been made to the ordinance, the first removing a waiver
provision whereby AEFs could locate in zoning districts even if they
were not an allowed use if community approval was given. The second
gave nonconforming AEFs five years to amortize their business before
being required to shut down, while the prior ordinance did not have an
amortization provision. The court found that neither change had an
impact on the constitutionality per se of the ordinance.
On the as-applied argument, the court applied the Renton 128 analysis
to determine whether the ordinance allows for reasonable alternative
avenues of communication. The plaintiffs challenged the district court's
finding regarding the number of available sites and whether those sites
met the test. The Eleventh Circuit noted the somewhat different approaches of the Fifth and Ninth Circuits to the issue of what is an
available site. The Fifth Circuit focuses almost exclusively on physical
obstacles and largely ignores economic factors. 129 The Ninth Circuit,
on the other hand, applies a multi-factor test that does include the consideration of economic factors. 13o The court declined to follow either
125. 200 F.3d 1325 (11th Cir. 2000).
126. The court found that neither the issue nor claim preclusion nor Rooker-Feldman
doctrines prevented the federal district court from determining the issue of whether the
ordinance was unconstitutional per se or as applied. Jd. at 1331-32. A state court denial
of a request for a preliminary injunction is not a final or conclusive judgment on the
merits of the constitutional claims and therefore cannot bar the district court's review
on the merits.
127. International Eateries of America v. Broward County, 941 F.2d 1157 (11th Cir.
1991), cert. denied, 503 U.S. 920 (1992).
128. Renton, 475 U.S. at 41.
129. Woodall v. EI Paso, 49 F.3d 1120, reh'g denied, 59 F.3d 1244 (5th Cir.), cen.
denied, 516 U.S. 988 (1995). Other circuits that follow this approach include the Eighth
Circuit, Alexander v. Minneapolis, 928 F.2d 278 (8th Cir. 1991), and the Fourth Circuit,
D.G. Restaurant Corp. v. Myrtle Beach, 953 F.2d 140 (4th Cir. 1991).
130. Topanga Press, Inc. v. Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied,
511 U.S. 1030 (1994).
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approach but instead adopted its own multi-factor test that is much
closer to the Fifth Circuit's approach. The court observed:
First, the economic feasibility of relocating to a site is not a First Amendment concern. Second, the fact that some development is required before a site can accommodate an adult business does not mean that the land is per se, unavailable....
Third, the First Amendment is not concerned with restraints that are not imposed by
the government itself or the physical characteristics of the sites designated for adult
use.... It is of no import under Renton that the real estate market may be tight and
sites currently unavailable for sale or lease, or that property owners may be reluctant
to sell to an adult venueYl
While there was evidence produced at the district court that showed
obstacles to obtaining a site for an AEF in the allowed zones, none of
the obstacles were government-imposed or government-caused. Thus,
the district court's finding that there were between seven and nine available sites would not be disturbed. In determining whether those available sites were sufficient, the court went back to the "equal footing"
doctrine. Relevant factors include the population of the area, acreage
available for AEFs as a percentage of overall size, number of existing
AEFs and demand for AEFs as represented by the number of businesses
seeking AEF permits. While criticizing the district court for not being
thorough in its analysis of the sites, the court did not reverse the finding
that the ordinance was constitutional as applied. One factor influencing
the court's decision was that the county's total acreage, still not annexed
into a municipal corporation, was shrinking so that the small number
of sites would be tolerated even though the county's population was
substantial.
[v] Young v. City of Simi Valley132
The city was an exurban community in the Los Angeles metropolitan
area that has a population of around 100,000. Prior to this litigation
there had been no AEFs within the city. An AEF ordinance adopted in
1978 was found unconstitutional several years later. In 1992, plaintiff
sought a zoning permit for an AEF. After filing the permit the city
adopted an emergency ordinance placing a moratorium on all AEFs
within the city. In March 1996, the city adopted an AEF ordinance that
utilized a classic scatter-site approach. In addition, no AEF could operate without getting a discretionary permit. At that time the ordinance
would allow AEFs on about 0.5 percent of the total land area of the
city, but when you included the buffer, zones at most only four sites
were available. Plaintiff's site was not an available site. Plaintiff sought
131. David Vincent, 200 F.3d at 1334-35.
132. 216 F.3d 807 (9th Cir. 2000).
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to lease another site and inquired of the city as to its meeting of the
AEF ordinance's requirements. He was informed the second site was
an allowed site, so he entered into a lease of that site. The city then
told the plaintiff that no permit would issue until he provided additional
information including noise mitigation and traffic studies. None of the
additional information was contained in the original discretionary permit requirements. Eventually the permit was denied, in part because
the city had in the interim given permission for a Bible study group to
use a vacant lot within 1,000 feet of the plaintiff's lot for a weekly
outdoor Bible study program. Under the AEF ordinance the existence
of a "sensitive use" as defined by the ordinance, either before or after
the AEF is permitted, will cause the AEF to violate the ordinance.
The court found that the ordinance is unconstitutional per se in large
part due to the existence of the "sensitive use" veto power. The court
applied the Renton test, specifically the reasonable alternative avenues
of communication doctrine. Plaintiff argued that because any person
may seek a zoning permit to open a "sensitive use" within the designated buffer zone while an AEF permit is pending, the ordinance impermissibly chills First Amendment rights and denies to AEF operators
alternative avenues of communication. By interpreting the ordinance
to require no sensitive uses be in existence at the time the application
is approved and not the time the application is filed, the city had made
. it difficult, if not impossible for an AEF to get a permit. The court noted
that it is unconstitutional "for a local government to impose a procedural requirement that delegates to certain favored private parties the
unfettered power to veto, at any time prior to governmental approval
and without any standards or reasons, another's right to engage in constitutionally protected freedom of expression."133 Combining the sensitive use veto with only four available sites in a community of 100,000
violated the Renton test. 134
The court further explored the delegation of veto power to private
individuals or groups. The ordinance was drafted to avoid the Freedman
problems by having a reasonable time period in which the decision to
issue the permit is to be completed and for having prompt judicial
review. But the court noted that the sensitive veto provisions, while not
acting as a prior restraint, do act as a restraint that may lead to a total
133. [d. at 817.
134. A dissenting judge argued that the sensitive veto issue was hypothetical only
and that plaintiff lacked standing to challenge it. As the majority noted, the city issued
a sensitive use pennit to a Bible study group at the same time it denied the plaintiffs
pennit because of the existence of that sensitive use. [d. at 823.
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prohibition of AEFs from the community. Obviously, the city cannot
delegate to private parties, powers it could not exercise itself. As with
Larkin v. Grendel's Den, Inc.,135 a standardless delegation of powers to
private institutions is unconstitutional, even without the infringement
of First Amendment rights.
The court reversed the district court's finding that the buffer zone
requirements were unconstitutional as applied because there were only
four available sites. While that number is quite low for a community
of 100,000 the court felt it premature to find the ordinance unconstitutional since there did not appear to be a substantial demand for AEFs
in the community. No AEFs were present in the community at the time
the plaintiff applied for his permit. The court recognized that the absence of AEFs could have been caused by the chilling effect of the
ordinance. Nonetheless the court found that in looking at the totality
of the circumstances on the record before it, four sites was clearly
unconstitutional.
[vi] Lim v. City of Long Beach 136
This case illustrates how a court within the jurisdiction of the Ninth
Circuit determines whether there are "reasonable alternative avenues
of communication" available under the Renton test. In 1994, the city
amended its AEF ordinance by expanding the buffer zone requirements,
prohibiting AEFs from certain zones where they were previously allowed and by establishing an eighteen-month amortization period for
nonconforming AEFs. Plaintiff owned two existing AEF's that violated
the 300-foot buffer provision for residential districts. The city identified
115 sites it contended were available for use within the city. The district
court found that twenty-seven to twenty-eight sites were available and
that was sufficient to meet Renton. The district court further found that
there was no equal protection violation by the disparate treatment of
nonconforming AEF uses.
The court initially noted that the burdens of producing evidence and
of persuasion on the alternative avenues issue, are clearly on the city.137
It applied the Topanga Press multi-factor formula to determine the
number of sites that are reasonably available. As noted earlier, this
135. 459 U.S. 116 (1982).
136. 217 F.3d 1050, as amended, 2000 U.S. App. LEXIS 21186 (9th Cir. 2000),
cert. denied, 2001 U.S. LEXIS 1719 (2001).
137. See also J & B Entm't, Inc. v. City of Jackson, 152 F.3d 362 (5th Cir. 1998),
analyzed at Kramer I, supra note 2, § 1.04[a][2][vii]; Phillips v. Keyport, 107 F.3d
164 (3d Cir.)(en banc), cert. denied, 522 U.S. 932 (1997), analyzed at Kramer II, supra
note 2, § 1.04[2][a][iv].
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approach allows for the consideration of economic factors in order to
show that the sites are part of an "actual business real estate market."
The issue in this case was the consideration of sites containing restrictive covenants prohibiting the leasing of the premises for AEF purposes. But the court found that private covenants do not make the sites
unavailable, applying an equal footing approach. After all private owners may restrict the use of the parcels whether it be for AEF or any
other use. In order to satisfy its burden of proof the city must present
sufficient evidence that the sites it put forward meet the definition of
actual business real estate market. There is a good faith standard imposed on the city to present its evidence in a way that the court may
judge whether the site is or will become available. Since the trial court
had placed the burden of proof on the plaintiff and did not allow the
plaintiff to sufficiently present evidence that some of the sites were not
legally available, the court remanded the case. Finally, the court found
that having an amortization period requirement for AEF nonconforming uses, while not having such a period for other NCUs, did not violate
the Equal Protection Clause. There was a rational basis for the city to
treat AEFs differently from other uses because of their secondary effects.
[vii] Alameda Books, Inc. v. City of Los Angeles l38
It has been rare, since Renton 139 was decided, to challenge a city's AEF
ordinance on the basis that there was insufficient proof of the secondary
effects of AEFs. In this case, however, the plaintiffs were able to persuade the Ninth Circuit that the amendment to the AEF ordinance was
not narrowly tailored to serve a significant governmental interest. 140 The
138. 222 F.3d 719 (9th Cir. 2000).
139. Renton, 475 U.S. 41.
140. The court noted the differences in approaches taken by the Ninth Circuit to
applying Renton that had been established in Colacurcio v. Kent, 163 F.3d 545 (9th
Cir. 1999), cert. denied, 120 S. Ct. 1553 (2000), and Tollis v. San Bernardino County,
827 F.2d 1329 (9th Cir. 1987). In Tollis the three-step test involved:
1. determining that the ordinance was a time, place, and manner regulation,
2. determining that it was content-neutral or content based and then, if contentneutral,
3. does it serve a substantial government interest and not unreasonably limit alternative avenues of communication.
Colacurcio, on the other hand, presumes that the ordinance is a time, place and manner
regulation and then asks,
1. is it content-neutral, and if so,
2. is it narrowly tailored to serve a significant governmental interest, and
3. does it leave open ample alternative avenues of communication.
Alameda Books, 222 F.3d at 722-23.
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city amended its existing AEF ordinance to segregate different types
of AEF operations so that a single AEF structure could not, under the
minimum distance requirements, have both video booths and adult
books. The city relied on its original AEF study of secondary effects
to support the new regulation. After noting that courts are to be deferential to legislative determinations regarding such matters as secondary effects, the court nonetheless concluded that the entire thrust of the
earlier study deals with the segregation of AEFs from other types of
uses, not the segregation of AEF uses within a single facility. The court
found no evidence in the earlier study that a combination bookstore/arcade/video booth operation produced any of the harmful effects
of an AEF. Even though Renton specifically authorized cities to rely
on studies performed by others, the court found that the city had not
met its burden of proof to show that the studies were relevant to the
problems being addressed by the multiple use regulation. 141 Having not
proven that there was a substantial governmental interest to be served
by prohibiting multiple uses within a single AEF structure, the city
could not enforce such a prohibition.
[viii] Diamond v. City of Taft142
While the Ninth Circuit allows for economic factors to be considered
in.determining the number of reasonably available sites, it still is not
easy to show that an AEF ordinance violates the reasonable alternative
avenues of the communication test. In this case, the owner of a lot
located in a commercial zone, which under the AEF ordinance allows
an AEF, sought a discretionary permit. The parcel, however, violated
the distance requirements of the ordinance and the permit was denied.
The owner then argued that there were insufficient available sites in the
city under the Renton test. The city is a rural town with a population
of around 6,800. The city identified some twenty potential sites. But
because several of the sites were contiguous, the district court concluded that only three sites were available. The city had no existing
AEFs and the plaintiff was the first person to have sought an AEF
permit. Applying the same analysis as Lim,143 the court examined
whether the three sites were part of the actual business real estate mar141. Several of the other circuits appear to have a more lenient interpretation of
what a city can rely on. ILQ Investments, Inc. v. Rochester, 25 F.3d 1413 (8th Cir.),
cert. denied, 513 U.S. 1017 (1994); Mitchell v. Commission on Adult Entertainment
Establishments, 10 F.3d 123 (3d Cir. 1993); Hart Book Stores, Inc. v. Edmisten, 612
F.2d 821 (4th Cir. 1979), cert. denied, 447 U.S. 929 (1980).
142. 215 F.3d 1052 (9th Cir. 2000), as amended reh'g denied.
143. Lim v. Long Beach, 217 F.3d 1050 (9th Cir. 2000).
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ket. Plaintiff argued that the sites lacked the requisite infrastructure for
a commercial establishment and that many of the sites were currently
occupied. While infrastructure shortcomings might take a site out of
the actual marketplace, in this case the plaintiff did not prove that any
general commercial enterprise wanting to locate on those sites would
need sidewalks and streetlights. The fact that the some of the sites were
currently occupied did not remove them from the real estate market.
The city made a good faith effort to identify appropriate sites including
providing detailed information on each site. That was sufficient to make
the three sites reasonably available.
As to whether the three sites identified fulfill the city's obligation
under Renton is a separate question requiring the court to weigh several
factors including the ratio of available land to total land, the number
of existing AEFs, and the demand for AEFs. With three available sites
and only one applicant for an AEF permit, the court concluded that
three was sufficient. In addition, in comparing the demand for sites and
the number of available sites, one can expand the number of available
sites to all sites since the plaintiff can choose from anyone site that
would then prevent other AEFs from opening. Another consideration
in determining whether the number of sites is reasonable is whether
existing AEFs will be able to relocate. In this case there was no relocation problem and therefore no need to expand the number of available
sites to meet the relocation and new demand needs.
[ix] D.H.L. Associates, Inc. v. O'Gorman l44
In 1987, the town adopted an AEF ordinance limiting AEFs to a zoning
district that never existed. In 1992, DHL sought an alcoholic beverage
license and a live entertainment license. The permits were issued. In
1994, DHL wanted to present nude dancing. After several town meetings where substantial local opposition was voiced, the town amended
its zoning ordinance to allow AEFs on two parcels of land, neither of
which was owned by DHL. DHL presented nude dancing for two years
claiming it could do so under its existing permits. It also sued the town
seeking to invalidate the ordinance. After the suit was filed, but before
it was heard, the town amended its ordinance to increase the size of the
AEF zone from two parcels to some lOA acres. The district court only
reviewed the amended ordinance and found that it met the Renton
requirements.
Because DHL was allowed to continue nude dancing, an argument
144. 199 F.3d 50 (lst Cir. 1999); cert. denied, 2000 U.S. LEXIS 3214 (May 15,
2000).
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was made that the case was not ripe for review. The town, however,
claimed that as soon as the litigation was final it would seek to enjoin
further nude dancing. That threat of injury was sufficient to make the
case ripe for review. Likewise, the court did not deal with the constitutionality of the earlier AEF ordinances because the issues were moot.
DHL had not suffered any injury or damages from those now-repealed
ordinances since it had been allowed to operate as a nude dancing
facility. Thus, the court only looked at the most recent AEF ordinance
that greatly expanded the area where AEFs could locate.
The town's AEF ordinance required an applicant to seek a discretionary permit. Since the plaintiff had not sought a permit, the issue of
prior restraint was not before the court. Yet the court, in dicta, clearly
indicated that such a permit requirement was a prior restraint, subject
to the Freedman-FW/PBS lirnitations. 145 There was a claim that the
ordinance was adopted without any reference to the secondary effects
of AEFs. The timing of the ordinance might show that the town was
interested in prohibiting nude dancing, not minimizing the secondary
effects. The court, however, believed that the evidence proffered by
town officials showed an interest in preventing or minimizing the secondary effects of AEFs. Under a minimal scrutiny of the district court's
finding, the appellate court would not reverse.
In reviewing the reasonable alternative avenues of communication
requirement, the court was faced with an allegation that the allowed
district only encompassed less than 1 percent of the total land area of
the town. While that small a percentage of available land is a factor, it
is not determinative. Instead, the court applied the multi-factor analysis
used in the other circuits. One important factor that the court weighed
was the rural nature of the town and the fact that most of the town's
area was unsuitable and not desired for commercial use. There was
evidence that five lots were available within the allowed zone and that
was sufficient. The court also noted that testimony from the owner of
the five lots showed that the lots were on the market to be sold if the
price was right. Under the equal footing approach, the claim by DHL
that the owner was charging too high a price was irrelevant. In addition,
the lots had the necessary infrastructure to support a commercial use.
Thus, the ordinance was upheld, albeit with the caveat that the discretionary permit requirement would have to provide for a quick decision
and an equally short period of time for judicial review.
145. FWIPBS, Inc. v. Dallas, 493 U.S. 215 (1990); Freedman v. Maryland, 380 U.S.
51 (1965).
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[xl Ward v. County of Orange l46
Plaintiff operated a "swimsuit club" where the activities were alleged
to be either lewd dancing or social dancing depending on whether you
read the affidavits of the owner or the county. Plaintiff had never sought
an AEF permit from the county since he believed he did not meet the
definition of an AEF as specified in the county zoning ordinance. Plaintiff sought to have the AEF ordinance declared unconstitutional per se
and as applied. The county, for its part, had never sought to close down
the plaintiff's operations or bring an enforcement action under its zoning ordinance.
The court found the ordinance constitutional on its face under Renton. 147 The ordinance is a clear time, place, and manner, content-neutral
effort designed to rid the county of the secondary effects of AEFs.
Plaintiff also argued that the ordinance shifts to the AEF operator the
burden of proof on the issue of whether the predominant business or
attraction of the establishment is not intended to provide sexual stimulation or gratification. One of the Freedman safeguards for prior restraints is that the burden of proof must be on the state to show that
the film or publication is not protected by the First Amendment. 148 As
interpreted by FW/PBS,149 however, some of the procedural safeguards
only apply to film censorship regulations, not general business licensing
decisions. The Eleventh Circuit, for example, has interpreted Freedman
to only require access to speedy judicial review in licensing cases as
opposed to requiring access to a speedy judicial decision. 150 Continuing
that distinction, the Eleventh Circuit finds that the shifting of the burden
of proof to the license applicant to show that the proposed business
operation is not an AEF under the ordinance did not violate Freedman. 151 Having stripped away two of the three Freedman procedural
safeguards, I would not be surprised if Freedman itself is ignored or
overruled insofar as the licensing schemes for AEFs are concerned. 152
The as-applied constitutional claims are remanded for a determination
146. 217 F.3d 1350 (11 th Cir. 2000).
Renton, 475 U.S. at 41.
Freedman, 380 U.S. at 51.
FW/PBS, 493 U.S. at 215.
See Boss Capital, Inc. v. Casselberry, 187 F.3d 1251 (11th Cir. 1999), cert.
denied, 529 U.S. 1020 (2000), analyzed at Kramer I, supra note 1, § 1.04[I][a][x].
151. Two other decisions have reached the same result. Steakhouse, Inc. v. Raleigh,
166 F.3d 634 (4th Cir. 1999), analyzed at Kramer I, supra note 1, § 1.04[I][a][viii];
Florida Video Xpress, Inc. v. Orange County, 983 F. Supp. 1091 (M.D. Fla. 1997).
152. The court also quickly dismissed the argument that the AEF ordinance was
unconstitutionally overbroad because of the use of the terms sexual gratification and
sexual stimulation. Ward. 217 F.3d at 1355.
147.
148.
149.
150.
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as to whether they are ripe for review, given the fact that the city has
not sought to shut the plaintiff down, nor apply the AEF ordinance to
it. The Eleventh Circuit wanted the district court to determine if there
was a county procedure allowing the plaintiff to seek a determination
that no AEF permit should be sought. If no such procedure existed, the
as-applied attack would not be ripe for judicial review.
[xi] Nightclub Management, Ltd. v. City of Cannon Falls l53
In another Freedman type case, plaintiff sought to invalidate various
portions of the city's AEF licensing ordinance. The AEF had been a
pre-existing use outside of the city's territorial limits at the time the
city sought to annex the area where it was located. Prior to annexation,
the city engaged in various studies showing the negative secondary
effects of AEFs. At that time there were no AEFs within the city. Simultaneous with the enactment of the AEF ordinance, the city adopted
a public nudity ordinance making the showing of human genitals or
buttocks illegal, except as part of any theatrical production performed
in a theater. The licensing provisions require the AEF operator to submit an application to the city that has thirty days to review the application. A denial decision may be appealed to the city council within
ten days of that denial and the decision is stayed pending the city council's disposition of the appeal.
Plaintiff alleged that the AEF ordinance was content-based since it
was based in part on a study conducted by a private organization that
allegedly was devoted to the suppression of sexually explicit speech
and conduct. Citing Erie, 154 the court found that the motive of the city
council in enacting the AEF ordinance is irrelevant to the constitutional
question. 155 Thus, the AEF ordinance is a content-neutral time, place,
and manner regulation.
The plaintiff then argued that the ordinance acted as a prior restraint
due to the discretionary decision-making power of the city official and
the lack of prompt judicial review under Freedman. 156 As to the first
prong of Freedman, namely the decision-making process must be of a
specified brief duration, plaintiff argued that because there was no time
limit on how long the city council could deliberate on an appeal, the
153. 95 F. Supp. 2d 1027 (D. Minn. 2000).
154. Erie, 529 U.S. at 277.
155. The court distinguished a free exercise case, Church of The Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), where the Supreme Court clearly
did not at the intent of the city in enacting the ordinance prohibiting animal cruelty.
156. Freedman, 380 U.S. at 51.
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ordinance violated Freedman. But the ordinance is valid under Freedman because of the stay provision. While the ordinance is unclear as
to whether a new AEF operator can open its business after its application for an initial pennit is denied, the court found that the stay provision would necessarily allow the operator to open. Thus, the only
period of time where there is a prior restraint is the thirty-day period
given the city official to render the initial decision. That is a sufficiently
short and specific period to satisfy Freedman.
The court acknowledged the split in the federal courts regarding the
issue of whether judicial access or judicial resolution is required under
the second prong of Freedman. Agreeing with the Fourth, Sixth, and
Ninth Circuits, and disagreeing with the Fifth, Seventh, and Eleventh
Circuits, the court found that access to a judicial forum is a worthless
safeguard. The court criticized those circuits that have found access
sufficient as based on an inference from Justice O'Connor's holding in
FW/PBS, that is unwarranted because of the Supreme Court's continued
reliance on Freedman. Under the AEF ordinance, the denial decision
is stayed only until the city council renders a decision. After that, judicial appeals are governed by general statutes that at a minimum require at least eight months after the filing of a petition for a writ of
certiorari before a judicial decision will be rendered. That is too long
under Freedman. While the ordinance contained a severability provision, the court invalidated all parts of the ordinance dealing with the
licensing scheme since they were all tainted by the lack of prompt
judicial decision making. Other portions of the AEF ordinance were
upheld.
Relying largely on Erie, the court found that the separately enacted
public nudity ordinance was constitutional. It found that the ordinance
was not overbroad, in large part because of the exception provided for
nudity in certain types of theatrical productions. 15? The court reviewed
the impact of Erie on Barnes, but found that since neither decision was
accompanied by a majority opinion, the Souter concurring opinion in
Barnes would continue to serve as the rationale for reviewing public
nudity ordinances. Thus, the court applied the O'Brien test to this ordinance and found that it met all of the requirements including the fact
that the requirement that pasties or G-strings be used was a minimal
restriction on speech designed to achieve an important governmental
interest. As such, the public nudity ordinance was upheld.
157. See also Farkas v. Miller, 151 F.3d 900 (8th Cir. 1998).
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[xii] T Backs Club, Inc. v. Seaton 158
Plaintiff operated an AEF that had a liquor and city business license.
The AEF offered erotic, but not totally nude, dancing. Plaintiff then
built a wall within the building and sought a separate business license.
That part of the operation did not serve alcoholic beverages. It did,
however, provide totally nude dancing. Eventually the city revoked the
restaurant and business permit it had issued for the new business. Plaintiff then filed this action seeking a preliminary injunction barring the
city for revoking its licenses for the new operation and facially challenging various state statutes imposing licensing requirements on
AEFs.
The court, at this stage of the litigation, found that plaintiff had not
established standing to challenge the validity of the licensing provisions
that seem to raise Freedman questions. Even though the city did not
raise the standing issue, the court on its own motion determined that
plaintiffs alleged injury was caused by the application of the state licensing provisions. The court in dicta did find that the statutory spacing
requirement of 1,000 feet from various types of uses was not facially
invalid. 159
As to the invalidity of the city ordinance, the court faced an ordinance
dealing with revocation of city licenses that was not specifically targeted at AEFs. Plaintiff argued that the ordinance violated the Freedman requirement of providing prompt access to judicial relief from an
adverse licensing decision. But the court found that the license revocation decision had nothing to do with any asserted First Amendment
right of the plaintiff. It was clear that plaintiff was operating without
one of the required permits since it was serving food. The city's revocation decision on the other permits were based on the fact that plaintiff had not received the public health permit. Without further evidence
that the decision was made to suppress the free speech rights of the
plaintiff, the court held that plaintiff had not shown a substantial likelihood of winning on the merits and therefore denied the preliminary
injunction.
[xiii] Nightclubs, Inc. v. City of Paducah 160
Plaintiff operated an AEF at the same location since 1987. In 1998, the
city enacted an AEF ordinance. The ordinance imposed a licensing
158. T Backs Club, Inc. v. Seaton, 84 F. Supp. 2d 1317 (M.D. Ala. 2000).
159. See also Ranch House v. Amerson, 22 F. Supp. 2d 1296 (N.D. Ala. 1998).
160. Nightclubs, Inc. v. City of Paducah, 202 F.3d 884 (6th Cir. 2000).
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requirement on AEFs as well as licensing requirements on employees
that required employee fingerprints, social security numbers, disclosure
of various offenses within three years of the date of application and a
description of the type of activity that the employee will be undertaking.
The ordinance required the city to approve or deny the license application within ten business days after receipt. A speedy review procedure was provided so that the legislative body would have to render a
decision within fifteen days of it receiving the appeal. The ordinance
also provided that a right to seek prompt judicial review of the city's
decision and hortatorily required the court to promptly review the
petition.
Plaintiff filed this action claiming that the ordinance violated the
required Freedman safeguards. The court followed the general rule that
prior restraints are presumptively invalid and the city has a heavy burden to overcome that presumption. While the ordinance does have a
ten-day period of time in which the city is to approve or reject the
permit, the ordinance also requires the AEF to pass a number of city
inspections. There are no time limits on when these inspections are to
take place. The ordinance does not require the city to issue the permit
if the inspections are not completed within the ten-day period. There
are also mandatory conditions that appear to require actions before the
application can be filed. Again, there are no limits on when these conditions requiring city actions or approvals will take place. There is also
no stay provision in the ordinance so that the status quo will not be
preserved pending the outcome of the decision. Thus, the first prong of
Freedman was found to be violated by the ordinance.
The court went on to find that notwithstanding the hortatory statements regarding judicial review, state statutes do not provide for expedited review of city decisions affecting AEF licenses. There is no
requirement that the city provide the required transcripts for review of
administrative decisions. In addition, the Sixth Circuit requires not only
prompt judicial access, but prompt judicial adjudication of these cases.
Again, there is nothing in Kentucky law that would require a judge to
move quickly in reviewing this type of case. The judge agreed with the
reasoning of the court in Nightclub Management that prompt access to
judicial review is a meaningless right, citing the famous umpire Bill
Klem, "It ain't notbin' till I call it." Until a judicial officer renders a
decision, the problem of prior restraints remain unsolved. Thus, the
court found the ordinance violated the second prong of the Freedman
test.
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[xiv] People v. Studio 20, Inc. '61
Under Illinois state law as applicable to counties, no AEF can be located
within 1,000 feet of the property boundary of a place of religious worship.162 The issue in this case is how the distance is to be measured.
The AEF was to be located on leased land that was part of a larger
parcel, labeled by the court as the facility parcel. The closest distance
between the boundary line of the church parcel and the boundary line
of the facility parcel was 955.13 feet. There was a dispute as to whether
the lease merely covered the building that was not located within 1,000
feet of the church, or the entire facility parcel. Under the terms of the
lease, the leased premises were defined as the building. Yet it was expected that patrons of the AEF would have to park somewhere on the
facility parcel in order to have access to the building. In interpreting
the statute, the court noted that its primary purpose is to prevent AEFs
from locating close to churches. Having a certain rule, namely that
measurement is to take place from property line boundary to property
line boundary will achieve that objective better than an ambiguous rule
of facility to facility or facility to property line. The property line to
property line rule maximizes the protection afforded religious facilities.
A dissenting justice asserted that the statute was designed to keep offending AEFs a minimum distance from churches. Therefore, one has
to look at the facility, not the property line of the premises where the
facility is located in order to carry out the intent of the legislature.
[xv] McKillop v. Onslow Countyl63
In prior litigation, the county's AEF ordinance had been upheld against
a First Amendment challenge. McKillop continued to operate her AEF
in violation of the ordinance and a court order. In this case the county
moved for an order to show cause why the owner should not be held
in civil contempt for failing to comply with the prior court order. The
AEF operator had shut down her business in response to the court order,
but then opened up another facility adjacent to the site of the original
AEE An undercover law enforcement official testified that defendant's
activities were in clear violation of the county's AEF ordinance. The
trial court held plaintiff in contempt for her willful failure to comply
with the prior court order. The court found that intent is required to
support a contempt citation, but that the evidence clearly showed that
the owner had the requisite intent to flout the court's prior order. The
161. 733 N.E.2d 451 (Ill. App. Ct. 2000).
162. 55 ILL. COMPo STAT. 5/5-1097.5 (1998).
163. 532 S.E.2d 594 (N.C. Ct. App. 2000).
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fact that McKillop asserted her Fifth Amendment rights in the hearing
does not prevent the court from inferring her guilt in a civil proceeding.
[xvi] City of New York v. "The Black Garter"l64
Under New York City's AEF ordinance, AEFs are not allowed in certain manufacturing districts where residences are allowed, as of right,
as with a discretionary permit. The AEF owner had operated the business in such a manufacturing district for over twenty-five years. The
city sought to shut down the AEF under its nuisance abatement law,
since it was allegedly operating in a district where it was not authorized.
Applying the hoary canon of construction, that zoning ordinances are
to be narrowly construed against the municipality, the court interpreted
the ordinance in favor of the property owner. While the zoning ordinance allowed residential uses in the manufacturing district applicable
to where the AEF is located, under the terms of the ordinance, residential uses are only allowed where they would have no adverse impact
. on existing commercial or manufacturing uses. If the city allowed residential uses, it would have an obvious adverse impact on the AEF that
has operated on the same site for twenty-five years. Since residential
uses could not be approved there is no violation of the ordinance and
therefore no right to claim that a nuisance existed by virtue of such a
violation.
[xvii] Harkins v. Greenville County165
In 1995, the county enacted an AEF ordinance limiting AEFs to certain
zoning districts and imposing a permit requirement on their operation.
Plaintiffs alleged that there were only four to five sites within the county
for AEFs to locate. The county's evidence showed that there were fourteen sites. The permit decision had to be made within thirty days of the
application unless one of seven listed conditions existed. There was
nothing in the ordinance dealing with the issue ofjudicial review. Plaintiffs operated several AEFs, none of which were located in an appropriate zone. They were sent a notice of violation from the county and
told to remove their businesses from their present locations within one
year. After the year amortization period passed, the plaintiffs challenged
the constitutionality of the ordinance as applied to them.
164. 709 N.Y.S.2d 110 (N.Y. App. Div. 2000).
165. 533 S.E.2d 886 (S.C. 2000). The South Carolina Supreme Court has not exactly
been a friend or supporter of AEFs. Last year in Restaurant Row Associates v. Horry
County, 516 S.E.2d 442, cert. denied. 528 U.S. 1020 (1999), the court upheld an AEF
ordinance both on First Amendment grounds and on state law grounds relating to the
variance denial decision that was made by the county.
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The court agreed with the plaintiffs' argument that the permit or
licensing scheme imposed a system of prior restraints. Relying on
FW/PBSI66 rather than Freedman, 167 the court analyzed the dual requirements of having the permit decision rendered within a specified and
reasonable time period during which the status quo was maintained and
providing for the possibility of prompt judicial review. The court found
that the initial decision by the county official had to be made within a
thirty-day period and that was sufficient. In order to seek judicial review
of such decisions, however, South Carolina law required the applicant
to exhaust all of her administrative remedies. The record did not contain
how such decisions were to be administratively appealed and whether
those appellate decisions were similarly time-constrained. The plaintiffs, however, bore the burden of proof on this issue and since it was
their failure to include all of the ordinances in the record, the court
found in favor of the county on this issue.
The court analyzed the split in the circuits regarding whether the
prompt access to judicial review meant merely access or resolution.
The court agreed with the Fourth, Sixth, and Ninth Circuits that only
requiring prompt access makes this safeguard meaningless. Judicial
review is not the filing of the lawsuit, but its resolution. Because there
is no guarantee that a judicial hearing will be held within any prescribed
period of time, much less that a decision will be rendered within any
period of time, the court invalidated the licensing provisions of the
ordinance.
The court found that there were reasonable alternative avenues of
communication left open for AEFs after it made a saving interpretation
of the ordinance. The ordinance prohibited the location of an AEF
outside of the designated S-l district. That was the basis for the plaintiffs' claim that there were only four to five sites. The court, however,
interpreted the provision as not excluding AEFs from the unzoned areas
of the county. That supported the trial court's factual finding that there
were nine available sites for the six existing AEFs. Under Renton, 168
that was a sufficient number. The court warned counties when they
adopt AEF ordinances that they need to tailor their ordinances to their
individual needs.
[xviii] P.M. Realty & Investments, Inc. v. City of Tampa 169
P.M. began operating an AEF that served alcoholic beverages in a section of the city where nightclubs and other drinking establishments
166. FW/PBS, 493 U.S. at 215.
167. Freedman, 380 U.S. at 51.
168. Renton, 475 U.S. at 41.
169. 779 So. 2d 404 (Fla. Dist. Ct. App. 2000).
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were commonplace. They never sought a special use pennit (SUP)
required to open and operate an AEF. The city sought a temporary
injunction seeking to shut down the AEF. The district court granted the
injunction. Where the city alleged that the zoning ordinance has been
violated, the court may presume that irreparable harm has occurred.
The court held that under the city ordinance, P.M. was required to get
the type of special use pennit applicable to uses that could have adverse
effects on adjacent properties without the inclusion of specialized conditions. P.M. also argued that the ordinance failed to have the Freedman
safeguard of prompt administrative and judicial review of the permit
decision. Under the terms of the ordinance the city must review the
SUP application within a thirty-day period. A subsequent appeal to the
city council must be decided within forty-five days. Judicial review
would be governed by the state statutes dealing with review of municipal zoning decisions. This court accepted the view of Freedman where
access to judicial review is sufficient to satisfy the First Amendment.
The court had no problem finding that the zoning restrictions on AEFs
are consistent with the Renton standards. The trial court apparently
made onsite visits to the list of available sites to see that they were
truly acceptable under Renton. The fact that other bars and nightclubs
in the area did not have to get a SUP would not support an equal
protection claim. Finally, the court found no regulatory taking because
some thirty-eight other uses of the parcel were allowed by the zoning
ordinance.
[xix] Wise Enterprises, Inc. v. Unified Gov't of Athens-Clarke
Countyl70
In November 1997, the county amended its AEF ordinance prohibiting
the issuance of an AEF license if the AEF is operating in a designated
Central Business District (CBD). The ordinance also prohibited the
holder of an AEF license from serving or selling alcoholic beverages
on the premises. Plaintiffs were all AEF operators who sought AEF
and/or liquor sales licenses from the county. The pennits were denied
and plaintiffs challenged the validity of the 1997 amendments.
The plaintiff argued that the prohibition against the sale of alcohol
at an AEF is the regulation of protected expression, thereby requiring
the court to apply heightened scrutiny. The court disagreed, however,
finding that the appropriate level of scrutiny for this content-neutral
ordinance is the intermediate level O'Brien testyl The mixture of al170. 217 F.3d 1360 (lIth Cir. 2000).
171. O'Brien, 391 U.S. at 367. This same issue had split a panel of the court with
the majority finding O'Brien applicable. Sammy's of Mobile, Ltd. v. Mobile, 140 F.3d
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cohol and nude dancing involve independent elements of expression
and conduct. The court cited the Erie 172 case as supporting its conclusion that the O'Brien test should be applied. The court easily found that
the challenged regulation furthered a legitimate governmental interest.
The minutes of the public hearing and the preamble to the ordinance
showed the county was concerned with the secondary effects of AEFs
that serve alcohol. The court found that the regulation was unrelated to
the suppression of free expression and went no further than was necessary to achieve the objective of minimizing the secondary effects.
The court also found that the prohibition against AEFs in the CBD was
supported by Renton,173 since AEFs were still allowed in several other
locations outside the CBD.
[xx] Bugsy's, Inc. v. City of Myrtle Beach 174
Plaintiff operated a sports bar and restaurant that also contained a separate video poker room. Under the city's zoning ordinance video poker
machines were allowed as a principal use in seven zoning districts. In
a number of other districts, including the one where plaintiff s business
was located, they were allowed only as accessory uses. Plaintiff admitted that 95 percent of its gross sales per month came from the video
poker machines. The zoning ordinance defined an accessory use as one
that is subordinate to the principal use in area, extent, or purpose and
that is designed for the comfort, convenience, or necessity of the occupants of the primary use. There was a specific reference to coinoperated amusement devices as accessory uses in restaurants and bars.
There was no factual dispute that plaintiff s video poker business did
not comply with the performance standards set forth in the ordinance
for accessory uses. The ordinance further provided for a two-year amortization period for nonconforming businesses.
Plaintiff argued that local control over video poker had been preempted by state statutes. While the state statute prohibits certain types
of local regulation of video poker operations, it does not occupy the
field of regulation. A city may not limit the number of video poker
machines within city limits, but there was not preemption of locational
requirements on those machines. The court found that there was no
preemption by occupation of the field. The plaintiff also argued that
the ordinance was in direct conflict with two state statutes, one dealing
993 (11th Cir. 1998), cert. denied, 529 U.S. 1052 (2000).
172. Erie, 529 U.S. at 277.
173. Renton, 475 U.S. at 41.
174. 530 S.E.2d 890 (S.c. 2000).
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with the licensing of businesses where video poker machines were allowed and the second dealing with video arcades. Again there is no
conflict, since the city's zoning ordinance merely affected the siting of
such machines and not with their licensing.
The court did not deal with plaintiff s vested right argument since it
was not properly preserved for appeal. Obviously, an ad hoc analysis
would have to be made to see if the two-year amortization period was
reasonable. The burden of proof on the reasonableness of the period is
on the party attacking the validity of the ordinance. Since the machines
were rented, the court determined that a two-year period to recoup the
rental costs of the machines that were valued at around $ 7,500 was
reasonable.
[xxi] Aguirre v. State 175
It is reasonably rare to report a criminal case in this annual review, but
this decision by the Texas Court of Criminal Appeals clearly affects
many AEF ordinances. An EI Paso AEF ordinance made it a misdemeanor to "own, operate or conduct any business in an adult bookstore,
adult motion picture theater, or nude live entertainment club" within
1,000 feet of various uses. City inspectors cited the owners and employees of an AEF that they claimed was located within 1,000 feet of
a parochial school. The municipal court convicted all of the defendants
and fined them $500. The issue on appeal is whether the ordinance
required the prosecution to allege and prove a culpable mental state as
a prerequisite to a conviction. 176
Under Penal Code § 6.02 all crimes require the state to prove that
the person acted intentionally, knowingly, recklessly, or with criminal
negligence unless in the definition of the offense the language plainly
disposes of any mens rea element. This section is applicable to municipal ordinances. Thus, unless the language of the EI Paso AEF ordinance plainly disposed of a mens rea requirement, one will exist even
where the statute is silent. Rarely does a legislature speak plainly on
the creation of strict liability criminal offenses. The Penal Code requires
that where there is any doubt the mens rea requirement attaches. Applying the statutory canon of construction to the facts, however, is not
either. The court noted that strict liability offenses are rarely criminal.
The fact that a person is faced with potential criminal liability requires
a court to rarely find strict liability crimes. The court looked to see
175. 22 SW.3d 463 (Tex. Crim. App. 1999).
176. The court also disposed on an argument that the prosecutor lacked standing to
appeal the intennediate appellate court's reversals of the convictions. [d. at 464-65.
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whether the AEF ordinance expressed in certain provisions an intent to
require a mens rea element. If it then omitted that language in another
provision, it would be evidence of legislative intent to make that second
provision a strict liability crime. The court also examined whether the
AEF ordinance is similar to the types of regulations that dispense with
the intent element, such as public health matters. In looking at a number
of factors, the court concluded that EI Paso had not plainly stated its
intent to make a violation of its AEF ordinance a strict liability offense.
The court noted that the ordinance applied not only to the owner, but
also to the employees who would not be in a position to know or even
to inquire about whether the AEF was violating the city's zoning
ordinance.
[xxii] State v. Russo 177
In a second criminal prosecution, the court was not concerned as the
Texas Court of Criminal Appeals was with the mens rea requirement
for violating an AEF ordinance, but was concerned with the more typical Renton and Freedman challenges. 178 Defendants started to operate
an AEF in a commercial zone in apparent violation of a traditional
Renton-type scatter-site AEF zoning ordinance. In addition, the AEF
ordinance required all AEFs to be surrounded by a 50-foot perimeter
buffer consisting of plant material approved by the Planning Board.
Plaintiffs pleaded guilty and paid substantial fines, reserving the right
to challenge the validity of the ordinance. The township contained
about 5,265 acres of which 32.1 acres or .52 percent was available for
AEFs. It was alleged that the 50-foot buffer zone requirement would
eliminate much of that acreage from being available. There were four
existing AEFs in the township that were not affected by the ordinance
because it was specifically prospective in effect.
The court invalidated one of the violations based on the failure of
the defendants to have the required AEF license. Even though they
never sought a license, the defendants had standing to challenge the licensing provision because of the potential chilling effect the provision
may have on their First Amendment rights. Relying on state law rather
than Freedman, the court found that since there were essentially no standards to govern the decision-maker in issuing or denying the license the
licensing provisions were invalid. The decision-maker must be given
"narrow, objective and definite" standards to avoid invalidation. 179
177. 745 A.2d 540 (N.J. Super. Ct. 2000), cert. denied, 754 A.2d 1210 (N.J. 2000).
178. Renton, 475 U.S. at 41; Freedman, 380 U.S. at 51.
179. Russo, 745 A.2d at 544.
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The court, however, found that the buffering requirement was valid
per se and as applied. The municipal objective of impeding the view
of the interior of the premises served an important governmental interest of preventing minors and members of the involuntary public from
being exposed to nude dancers. The ordinance went further by requiring
buffering all around the building even if there were no windows, but
the court found that such a requirement served the governmental objectives of preserving property values, preventing urban blight, and
diminishing negative effects on nearby businesses. The court also rejected the as-applied claim finding that there were sufficient alternative
available sites under Renton. 180 While it was true that some of the 32.1
acres where AEFs were allowed were taken out from the mix, the court
considered that the four existing AEFs were allowed to continue operation and when combined with the remaining acreage, met the Renton
test. The court also held that several provisions of the AEF ordinance
were not void for vagueness. The court finally held that the New Jersey
AEF statute l81 did not preempt the township ordinance since it clearly
allowed municipalities to enact more stringent buffer requirements than
that provided for by the statute.
[xxiii] Town of Seabrook v. Vachon Management, Inc. 182
Defendant leased a portion of a multi-unit building to an AEF in 1990.
In 1991, a town building inspector discovered that the AEF was conducting live mud and oil wrestling events on the premises. The AEF
owner was told to upgrade its septic system to deal with the increased
number of persons using the premises. In 1994, the town enacted an
AEF ordinance using the scatter-site approach. The leased premises
could not comply with the ordinance since they were close to a residence and a church. Several years later, the town received complaints
that the AEF was holding live entertainment, including nude dancing.
The town sought injunctive relief to shut down the nude dancing. A
trial court found that the AEF had antedated the ordinance and qualified
as a nonconforming use (NCU).
The major issue is whether the pre-1994 activities on the premises
constituted a valid NCU. In order to qualify as a NCU, the use must
lawfully exist at the time the restriction is adopted and must continue
to operate as a NCU following the adoption of the ordinance. The owner
of the NCU has the burden of proof to show that the current use is
180. Renton, 475 U.S. at 41.
181. N.J. STAT. ANN. § 2C:34-1.
182. 745 A.2d 1155 (N.H. 2000).
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neither new nor impermissible because of the public policy to limit the
extension or enlargement of NCUs. While the mud and oil wrestling
activities antedated the 1994 ordinance it was not a valid preexisting
use because the owner had never sought site plan review. Under the
town's zoning regulations when a use converts from one allowed use
to another it must get site plan approval. In this case, when the prior
use of the leased premises as a computer repair store was changed to
a mud-wrestling arena, the owners were obligated to get site plan approval. In addition, the present use of the premises for nude dancing
would constitute an expansion of the NCU from its prior wrestling
format.
Defendants also argued that the town should be estopped from enforcing its zoning ordinance because it granted them amusement licenses after 1994. New Hampshire recognizes that estoppel against the
government should not be favored because it may injure the public
interest. The court found that defendants had not met their burden of
proof to show that the granting of one-year licenses for the operation
of amusement booths was the equivalent of an affirmative representation that defendants would be allowed to continue live nude dancing.
Finally, the court rejected the claim that the town should be barred by
the equitable doctrine of laches from seeking to enforce its site plan
requirements. As with estoppel, courts do not easily allow governments
to be prohibited from enforcing their ordinances merely because they
have delayed in bringing that enforcement action. Laches should not
be applied to parties who come in with unclean hands, such as the
defendants who knowingly violated the site plan approval requirements
in 1992.
[xxiv] City of New York v. Warehouse on the Block, Ltd. ls3
The city sought to shut down the defendant's alleged AEF operation
under its Nuisance Abatement Law. The AEF ordinance defined an
AEF as a commercial establishment where a substantial portion of the
AEF included an adult bookstore. An adult bookstore is defined as one
having a substantial portion of its stock in trade depicting or describing
sexual activities or specified anatomical areas. The defendant's operation was not located in an area where AEFs were allowed. Inspectors
for the city found that 64 percent of the total floor space was allocated
for non-adult material. The guidelines used by the city use a 60-40
ratio to determine if the establishment is an AEE The city argued,
183. 703 N.Y.S.2d 900 (2000).
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however, that the non-adult material was merely a sham for the adult
books being sold. But the court found that the city's guidelines limited
administrative discretion to the 60-40 ratio without allowing for the
consideration of other factors such as sales totals or sham transactions. 184 The defendant could not be judged on the basis of revised
guidelines adopted in response to a court of appeals decision limiting
the prior guidelines to the floor space ratio factor. The revised guidelines specifically add a sham compliance factor. The city would have
to give AEFs notice and an opportunity to come into compliance with
the new guidelines before bringing an action to shut them down as
nuisances.
[xxv] T & A's, Inc. v. Town Bd. of the Town of Ramapo 185
Plaintiff operated the only AEF in the town, opening for business in
1990. Under New York law, no alcoholic beverages are served and there
is only a limited food operation. The AEF was located in a rural area,
largely inhabited by members of an orthodox Jewish sect, known as
Chasidim. They voiced objections to the town regarding the operation
of the AEF. In 1997 the town enacted an AEF ordinance after conducting a study. on the secondary effects of AEFs. The ordinance used
the scatter-site approach for zoning AEFs and required them to meet
the parking requirements for restaurants. AEFs that are nonconforming
had one year to relocate, subject to an extension period should they
show that they needed more time to amortize their investment-backed
expectations. The ordinance was unclear as to whether AEFs were permitted or conditional uses in the single commercial zone they were
allowed in. If they were conditional uses they would have to apply to
the planning board for a conditional use permit (CUP) and meet several
standards including being in harmony with the development in the district, not being a hindrance to development of adjacent land, and not
being detrimental to the site or adjacent properties. The court found
that the ambiguity in classifying AEFs made it virtually certain that the
AEF owner would not have the benefit of objective criteria in the issuance of a permit, but would be subject to the unbridled discretion of
the planning board.
There was some dispute as to the number of alternative available
sites. The town encompassed some 31,040 acres. The commercial zone
where AEFs were allowed included only 2.1 percent of the developable
184. See City of New York v. Les Hommes, 724 N.E.2d 368 (N.Y. App. Ct. 1999),
analyzed infra § 1.04[2][a][xxix].
185. 109 F. Supp. 2d 161 (S.D.N.Y. 2000).
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land. The scatter-site requirements further reduced the potentially available land to only 0.6 percent. The actual amount of available land may
be even less. Interestingly, the town in its determination that nine sites
were available used a building-to-building measurement criteria, while
the AEF owner argued that a lot-line to lot-line criteria should be used,
leaving only two available sites. Since the town used the lot-line measurement technique for other zoning issues, the court found that the
town's evidence was not persuasive. In fact, the court concluded that
there were probably no suitable locations for an AEF providing live
entertainment within the town.
While the AEF operator asserted that the ordinance was not contentneutral since it was triggered by a request by local residents who objected to having nude dancing in their neighborhood, the court found
that the ordinance satisfied the Renton 186 test for content-neutral ordinances. The primary purpose of the ordinance was to prevent the negative secondary effects of AEFs as stated in the preamble to the ordinance. The town could rely on studies showing those effects in other
communities. The court would not second-guess the town and reexamine its motives.
The court, however, found that the ordinance as applied vested too
much discretion in the planning board to satisfy the requirements for
prior restraints. Because CUPs could be denied based on the board's
views on health, safety, comfort, and convenience, or any other appropriate standard, the ordinance was too vague so as to allow for the
board to exercise that power to discriminate based on the content or
viewpoint of speech. The ordinance needed to have assigned AEFs to
a particular use group so that they would not fall within the conditional
use category that gave overly broad discretion to the board to deny the
permit. The court also found that the ordinance violated the Renton
requirement that reasonable alternative avenues of expression remain
available after the ordinance was implemented. The court placed the
burden of proof on this issue on the town to show an adequate number
of potential sites that are part of the community's actual business and
real estate market. In determining availability the court may look at
such factors as accessibility to the general public, surrounding infrastructure, pragmatic likelihood of the space becoming available, and
whether the sites are suitable for a commercial establishment. The court
noted that prior cases including Renton had found that at least 4 percent
of total land area may be sufficient, but the percentage available in this
186. Renton, 475 U.S. at 41.
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case was less than 1 percent. While AEF owners must fend for themselves in the real estate market, there must be enough usable and available land so that a real, not illusory, market exists.
[xxvi] City of Dallas v. North by West Entertainment, Ltd. 187
An AEF sought a permit to operate a club as an adult theater under the
terms of the Dallas AEF ordinance. The application was denied on the
basis that it was located within 1,000 feet of another AEE The AEF
sought a location restriction variance that was denied. Judicial review
was sought including a request to enjoin the city from enforcing its
AEF ordinance against it. The trial court granted the AEF's temporary
injunction. The city appealed the injunction by filing a notice of appeal.
The issue in this case related to whether the filing of the notice of appeal
automatically suspended the enforcement of the temporary injunction
order. The court found that under Texas Rule of Appellate Procedure
29, the filing of the notice of appeal did supersede the order because
home rule entities do not have to file a supersedeas or cost bond. Thus,
the city's action superseded the order granting the temporary injunction.
[xxvii] Kismet Investors, Inc. v. County of Benton 188
Plaintiff operated an AEE In previous litigation, the county's attempt
to require it to get a conditional use permit (CUP) was overturned
because it granted too much discretion to the county to satisfy the First
Amendment. That led to the county's enactment of an AEF ordinance
that restricted AEFs to four zoning districts and imposed a scatter-site
requirement. The ordinance provided a four-year amortization period
for nonconforming use (NCU). Plaintiff sought a variance shortly before the end of the amortization period. At the public hearing, plaintiff
proffered evidence of making substantial improvements to the building
that were only beneficial if it remained an AEE The variance was
denied.
The scope of judicial review of a variance decision is limited to see
whether it was reasonable. Appellate court review looks at the record
before the county, not the record before the trial court. Under Minnesota
law, a variance may only be granted upon a showing of practical difficulties or particular hardship. Hardship is defined as whether the property can be put to a reasonable use absent the variance and whether the
landowner's plight is caused by unique circumstances, not self-imposed
by the owner. Plaintiff bore the heavy burden to show that the variance
187. 24 S.W.3d 917 (Tex. App. 2000).
188. 617 N.W.2d 85 (Minn. App. Ct. 2000).
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was justified. The variance here was not a use variance, because the
zoning ordinance allowed such uses; the variance was caused by the
application of the AEF ordinance. The court found that the statute created separate standards for area and use variances. Area variances may
be issued upon a showing of practical difficulties while use variances
require the more stringent standard of particular hardship. Nonetheless,
the court found that the county's decision not finding practical difficulties was reasonable. There were other reasonable uses for the property, including a restaurant or resort use. The investment made by the
AEF owner was self-imposed and did not create a building that was so
unique that it only had one economically viable use. There was also no
showing that the parcel was unique.
On the First Amendment issue, the court placed the burden of proof
on the county. The court had no difficulty finding that the ordinance
was content-neutral and aimed at the secondary effects of AEFs. Studies
from other cities were reviewed prior to the adoption of the ordinance.
The county did not have to make specific findings regarding secondary
effects in the county or from this particular AEF in order to meet the
Renton standard. 189 The court rejected the Alameda Books 190 interpretation of Renton that required a more exacting analysis to determine
whether the ordinance is truly aimed at secondary effects. The court
reviewed the evidence regarding the number of available alternative
sites. It concurred with the county that a building-to-building method,
rather than a lot-line-to-lot-Iine method be used to determine the number of sites. The county established that there were over 100 available
sites where plaintiff's AEF could be relocated. That clearly met the
Renton standard of having a reasonable opportunity for AEF owners to
locate their operations within the community.
[xxviii] St. Louis County v. RA.P., Inc. 191
BAP operated a business where 20 percent of its merchandise was
considered adult-oriented products. The business was located within
1,000 feet of a church. The ordinance defined an AEF as one where 25
percent or more of the retail value of the merchandise offered for sale
consists of adult material. In previous litigation, the court had upheld
the constitutionality of the ordinance after the county had received preliminary injunctive relief ordering BAP to shut down. l92 In this action
189.
190.
191.
192.
Renton, 475 U.S. at 41.
Alameda Books, 222 F.3d at 719.
25 S.W.3d 629 (Mo. Ct. App. 2000).
St. Louis County v. RA.P., Inc., 18 S.W.3d 397 (Mo. Ct. App. 2000).
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the county was seeking to cite BAP for contempt of court since it did
not stop selling adult material. The trial court refuseJ to hold BAP in
contempt since it was selling less than 25 percent adult-themed material. The county argued that the 25 percent figure in the ordinance
merely created a rebuttable presumption and that upon specific proof,
businesses could be found to be AEFs with less than 25 percent of their
sales of adult material. The ordinance further defined an AEF as one
where a substantial portion of the merchandise offered for sale is adultthemed. The court found that the 25 percent figure was not determinative. A business could be an AEF even if its sales or merchandise
fell below the 25 percent figure if a substantial portion of its business
dealt with adult material. Since the trial court had applied the 25 percent
figure as the final word, the court remanded the case back to determine
whether BAP was in violation of either the ordinance or the injunction.
[xxix] City of New York v. Les Hommes l93
Under administrative guidelines promulgated by the city an adult establishment is defined in terms of a "substantial portion" of the business
must involve some type of adult material. In the case of a bookstore as
was involved here, the substantial portion had to be of its "stock-intrade." The guidelines further provide that several factors shall be considered including the amount of such stock accessible to customers as
compared to the total stock, the amount of floor area and cellar space
accessible to customers containing adult material and the amount of
floor space for adult stock as compared to the total floor space available
for all stock. A subsequent addition to the guidelines said that if at least
40 percent of the floor and cellar area is available for adult use, that
will meet the substantial portion requirement. In addition, if more than
10,000 square feet of a commercial establishment is occupied by an
adult use, that establishment is deemed to be an AEF regardless of its
total size.
At the trial the city was only able to prove that 24 percent of the
stock consisted of adult videos. The trial court nonetheless concluded
that Les Hommes was an AEF. It went behind the numbers and found
that compliance with the 60/40 guideline was, in essence, a ruse or
fraud, since the non-adult stock did not tum over. The court found that
under the guidelines the definition of stock does not account for what
is actually being sold. Thus, the fact that the non-adult stock was not
selling as quickly as the adult stock could not be used to label the
193. 724 N.E.2d 368 (N.Y. Ct. App. 1999).
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operation an AEF. The court applied a plain meaning approach to the
guidelines and refused to allow the city or the trial court to embellish
that plain meaning. The non-adult stock was accessible and available
and therefore had to be counted in determining whether this was an
AEF. The good or bad faith of the AEF owner was irrelevant as long
as it complied with the floor space requirements.
[xxx] West End Pink, Ltd. v. City of Irving 194
A city ordinance limits the sale of alcoholic beverages at restaurants to
no more than 40 percent of the annual total sales. Plaintiff operated a
restaurant in a zoning district employing that limit. The city notified
the plaintiff that it was in violation of the ordinance and threatened to
rescind its certificate of occupancy. Plaintiff challenged the constitutionality of the ordinance saying that it was preempted by the Texas
Alcoholic Beverage Code (TABC). Irving, as a home rule city, has all
powers that are not inconsistent with the constitution or general law.
The city cannot regulate in an area preempted by state statute. The
plaintiff argued that the city ordinance was either in direct conflict with
various provisions of the TABC or was preempted by the state's occupation of the field. The city argued that the enactment of three validation statutes by the state legislature since the passage of the alcoholic
beverage limitation provision cured any potential defect. While validation statutes can cure statutory defects, they cannot cure constitutional defects. There was no constitutional claim made in this case. The
only basis asserted by the plaintiff was preemption. Since the legislature
can cure any preemption claim by express legislation giving cities the
power to act, they can cure the same problem through a validation
statute. Thus, while several decisions have found local regulation of
liquor licensees preempted, none of those cases dealt with the impact
of a validation statute. 195
[b] SIGNS AND BILLBOARDS
[i] Knoeffler v. Town of Mamakating l96
After a dispute with a neighbor and the town, the plaintiff began erecting signs on his home and lawn protesting various matters. He was
194. 22 S.W.3d 5 (Tex. App. 2000). See also City of New York v. Desire Video,
267 A.D.2d 164, 700 N.Y.S.2d 446 (1999), where the court found that an AEF had
violated a prior court order to abate the nuisance it was creating by lowering the amount
of adult material being sold or offered where inspections showed 77 percent of the
stock was comprised of adult material.
195. Dallas Merch.'s & Concessionaire's Ass'n v. Dallas, 852 S.W.2d 489 (Tex.
1993).
196. 87 F. Supp. 2d 322 (S.D.N.Y. 2000).
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served with a notice of violation of the town's sign ordinance. After
several attempts he was given a temporary permit to allow the existing
signs, provided that they were removed within six weeks. The owner
sought federal judicial relief and while the case was pending the town
amended its sign ordinance requiring permits for all signs, with several
exceptions. One type of exempted sign related to protest signs on matters of public information and convenience, although there were size
and number restrictions on this type of size. Plaintiff asserted that both
the original and amended sign ordinances violated his First Amendment
free speech rights.
As to the original sign ordinance, residential signs are allowed, but
only as temporary signs. The ordinance allowed certain onsite commercial signs without a permit, but required public information and
convenience signs to get a discretionary permit. Clearly, the original
ordinance favored commercial over noncommercial signs. That constitutes a content-based regulation and violates the Metromedia and Ladue
principles. Clearly the ordinance was not narrowly tailored to achieve
the significant governmental objectives of traffic safety and aesthetics.
Likewise by giving unbridled discretion to the town to grant or deny
the permit, the original ordinance violated the First Amendment.
As to the amended ordinance, it too is a content-based regulation.
While it required permits for all signs, commercial and noncommercial,
it also created eighteen classes of exempted signs. The basis for most
of the exemptions was the content or message of the sign. There is a
strong presumption that content-based sign regulation is unconstitutional. While some of the opinions in Metromedia accept the notion
that certain types of signs may be treated differently based on content,
the Second Circuit follows the view that any type of content-based
regulation must satisfy the strict scrutiny test. 197 Thus, it too violated
the First Amendment rights of the plaintiff.
The plaintiff sought compensatory and punitive damages against individual town officials and the town. As to the building inspector who
denied the permits and issued the citations, the court found that he was
entitled to qualified immunity. If his actions did not violate clearly
established statutory or constitutional rights of which a reasonable person would know, immunity attaches. The court found that, as a matter
of law, the building inspector acted objectively and thus was entitled
to immunity. Without the individual official, the town cannot be held
liable for punitive damages. 198 Plaintiff's damages claims against the
town, however, may be asserted.
197. Nat'l Adver. Co. v. Town of Niagara. 942 F.2d 145 (2d Cir. 1991).
198. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).
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[ii] Adams Outdoor Advertising v. City of East Lansing l99
This is a regulatory takings case relating to the application of a sign
ordinance's amortization provision relating to rooftop signs. The ordinance was adopted in 1975 and totally prohibited rooftop signs. The
ordinance also required the removal of nonconforming signs by May
1, 1987. In litigation commenced at that time, the Michigan Supreme
Court concluded that the city had authority to use amortization provisions to eliminate nonconforming signs or other uses. 2oo On remand the
trial court found that the amortization provision constituted a regulatory
taking as to both rooftop and freestanding signs. The court of appeals
affirmed that finding as to rooftop signs, but reversed and remanded as
to freestanding signs. The city appealed the decision as it affects rooftop
sIgns.
Michigan's approach to regulatory takings jurisprudence is reasonably straightforward. 201 The court accepted the Agins view that a taking
occurs when the regulations do not substantially advance a legitimate
state interest. Secondly, a taking occurs under a Lucas-type deprivation
of all economically beneficial or productive uses of the land. Thirdly,
a taking occurs under a Penn Central-type balancing test where the
court weighs the character of the government's action, the economic
effect of the regulation, and the interference with reasonable
investment-backed expectations.
In this case a preliminary question has to be resolved before applying
the appropriate test. What is the nature of the plaintiff's property interest that has allegedly been taken? Adams asserted that it was its
leasehold rights to the rooftop signs. The court found that a lessor can
transfer no greater right to the lessee than that which is possessed by
the lessor. The lessor here did not have a vested right to place a rooftop
sign on its buildings. Whatever right it had to place a sign there was
always subject to reasonable police power regulation. Likewise, structuring the lease to allow only rooftop signs cannot create a property
right not subject to police power regulation. The leases in question were
executed many years after the city's sign ordinance went into effect.
The prohibition against rooftop signs clearly did not constitute a Lucas
taking. Only one "stick" from the "bundle of sticks" of property ownership was removed. No taking occurred under Penn Central as well.
199. 614 N.W.2d 634 (Mich. 2000).
200. Adams Outdoor Adver. v. E. Lansing, 483 N.W.2d 38 (Mich. 1992).
201. See K & K Constr., Inc. v. Dep't of Natural Resources, 575 N.W.2d 531 (Mich.
1998), cert denied, 525 U.S. 819 (1998), reh'g denied, 525 U.S. 1034 (1998).
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All of the factors weigh in favor of the city. The sign ordinance is a
reasonable police power regulation, whose impact on the owner's property rights is limited and whose interference with investment-backed
expectations is de minimis. Thus, the court found that no regulatory
taking occurred when the ordinance prohibited rooftop signs and required their removal after a twelve-year amortization period.
[iii] Lawson v. City of Kankakee 202
In 1998, the city enacted an ordinance prohibiting the placement of
signs upon any private or public property without the consent of its
owner or occupant. Plaintiff and the city were engaged in a dispute
regarding compliance with the city's building code for one of plaintiff's
rental units. Eventually the city placed a sign in front of one of these
parcels declaring that the home was not in compliance with the building
code. Plaintiff responded by placing a sign on an adjacent parcel he
owned attacking the mayor. The city removed plaintiff's sign since it
was allegedly in an area of the parcel that the city asserted an ownership
interest in. Plaintiff then filed this suit claiming that his First Amendment rights had been violated by the removal of his sign and the application of the ordinance.
The court first had to decide who owned the area where the signs
were located. It determined that the city did own that area after reviewing the original plats and state law. Thus, the plaintiff would have to
show that the ordinance was unconstitutional on its face or as applied
to him to show a likelihood of winning on the merits. As applied to
plaintiff, the ordinance burdened his speech by preventing him from
placing a sign on the area in front of his parcel that was owned by the
city. The ordinance was content-neutral because it applied to all signs.
The city ordinance was similar to the ordinance approved in Vincent203
based on the city's need to prevent clutter and visual blight. But in this
case, the city did not justify its prohibition based on visual clutter,
especially visual clutter in these areas owned by the city adjacent to
private property. The clearest evidence of that was the city's placement
of its sign criticizing the plaintiff s maintenance history on the adjacent
parcel. The ordinance has the effect of requiring consent by the city
before one can place a sign on city property. There are no guidelines,
time limits, or procedures for obtaining that consent. Thus it appears
to violate the Freedman guidelines for prior restraints. The fact that the
202. 81 F. Supp. 2d 930 (C.D. Ill. 2000).
203. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789 (1984).
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plaintiff could place his sign on his property that is located only several
feet from the city-owned parcel did not negate the existence of a First
Amendment violation. Finally, the court found that plaintiff had made
a prima facie case of selective enforcement of the ordinance because
of the sign's political message. Plaintiff was able to show that the city
had not removed signs from other locations on city-owned land even
though the signs had not been placed there with the city's consent. One
witness proffered by the plaintiff was a real estate agent who testified
that he often placed for-sale or for-rent signs on city-owned property
adjacent to privately owned property and that those signs had never
been confiscated by the city. Thus, plaintiff's motion for a preliminary
injunction was granted and he would be able to place his sign on the
city-owned strip of land in front of plaintiff s parcel.
[iv] North Olmsted Chamber of Commerce v. City of N. OlmstetP04
The city enacted a comprehensive sign ordinance in 1991. Nonconforming sign owners were given until January 1, 1998, to remove their
signs. Upon a showing of hardship the six and one-half year amortization period would be extended an additional ninety days. The city
began sending out notices of violations after the deadline for removal.
Plaintiffs included the chamber of commerce and individual sign owners and sign sellers. Plaintiffs alleged that the ordinance violated their
First, Fifth, and Fourteenth Amendment rights. They sought to enjoin
the city from enforcing the ordinance.
The district court was reviewing a decision of a federal magistrate
who had found that the ordinance was an impermissible prior restraint,
an impermissible content-based restriction of both commercial and noncommercial speech and was substantially overbroad. The court initially
determined that the plaintiffs had standing to challenge the ordinance.
In the context of the First Amendment the usual rule thaf a party may
assert only a violation of its own rights is expanded to allow a challenge
that the regulation is content-based because of the chilling impact of
such a regulation. In addition, plaintiff had standing to challenge the
prior restraints imposed by the sign ordinance under Freedman even if
the individual plaintiff had not sought a permit or license.
The court defined a content-based regulation as one where the subject
matter of the content conveyed determines whether the speech if subject
to restriction. The court found that the ordinance contained contentbased restrictions on protected noncommercial speech and thus applied
204. 86 F. Supp. 2d 755, clarification denied, 108 F. Supp. 2d 792 (N.D. Ohio
2000).
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the strict scrutiny analysis to such restrictions. 205 The city tried to avoid
strict scrutiny by applying the Renton approach. After all, if one looks
at Renton, you have a classic content-based regulation. Certain types
of facilities are regulated based on the content of what they sell. Yet
the court in Renton found that the ordinance was content-neutral because it was dealing with the secondary effects. But the court rejected
applying the Renton approach outside of the context of AEFs. This
court rejected the notion that intent or motive of the city is relevant to
determining whether the restriction is content-based. In this case, the
ordinance classified signs by use types and by structural types. Use type
classifications are clearly content-based since they include such classes
as real estate signs, directional signs, organizational signs, identification
signs, and the like. In addition, other restrictions on signs in residential
districts are also content-based. The court used as an example a sign in
a residential district that mimicked a stop sign and said stop gun violence as a sign that would violate the ordinance. The city was unable
to show that its regulation served a compelling state interest and that
it was the least onerous means to achieve that interest. While safety
and aesthetics are substantial interests after Metromedia they are not
compelling state interests. Even if the court was willing to equate substantial with compelling, the ordinance would fail because there were
less onerous alternative regulatory schemes to achieve those interests.
The choice of what type of signs were allowed and not allowed, based
on their message and the various exceptions contained in the ordinance,
showed that the ordinance was not narrowly restricted.
The court applied the four-part Central Hudson test to the contentbased restrictions on truthful nonmisleading commercial speech. The
key issues were whether the ordinance advanced the substantial governmental interest and whether it was not more extensive than is necessary
to serve that interest. In order to satisfy the requirement of advancing the
asserted governmental interest, the court applied the following test:
This burden is not satisfied by mere speculation or conjecture; rather a governmental
body seeking to sustain a restriction on commercial speech must demonstrate that
the harms it recites are real and that its restriction will in fact alleviate them to a
material degree. Consequently, the regulation may not be sustained if it provides
only ineffective or remote support for the government's purpose. We have observed
that this requirement is critical; otherwise a state could with ease restrict commercial
speech in the service of other objectives that could not themselves justify a burden
on commercial expression. 206
205. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).
206. N. Olmstead Chamber, 86 F. Supp. 2d at 770 (quoting Greater New Orleans
Broad. Assoc., Inc. v. United States, 527 U.S. 173, 188 (1998). There are some who
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The last prong regarding the not more extensive a regulation than is
necessary, fits closely in with the heightened scrutiny under the advancement prong. The court found that several of the restrictions in the
sign ordinance relating to identification signs, temporary signs, service
station signs, and multiple use signs did not meet the third or fourth
prongs of the Central Hudson test. For example, a sign in the shape of
an arrow in front of a business could say "enter here" but could not
identify the business under the terms of the ordinance. This type of
distinction did not advance any interest in safety or aesthetics and thus
could not be sustained. Size regulation of signs is clearly permissible
content-neutral time, place, and manner regulation. But size regulations
that are tied to the content of the sign also do not satisfy the Central
Hudson test. Once a sign is allowed, why is the content of the sign
related to the governmental interests in safety and aesthetics? Commercial sign regulations that limit sign size based on what type of sign
it is violated the Central Hudson test.
The court also struck down the pole sign prohibition contained in
the sign ordinance. Because the ordinance exempted a number of pole
signs from the prohibition, the court concluded that the restriction was
content-based. Even if the ordinance was interpreted to only exempt
government-owned pole signs, it would still be invalid, since that exemption does not advance the interests of safety or aesthetics. The pole
sign regulation is not saved by an exemption for political pole signs
since the other exemptions in this provision make it unenforceable as
adopted.
The court also found that the ordinance's requirement that a sign
permit be received for all permanent and temporary signs over six
square feet in sign face area constituted an impermissible prior restraint.
The permit official reviewing the application can consider the design,
color, orientation, visual impact, and influence of the proposed sign.
Those factors, when combined with the content-based regulation of
various signs, make the permit system a prior restraint. Here the court
found that there were not sufficiently clear standards to limit the discretion of the permit-issuing official. Likewise, the Freedman safeguards requiring a decision to be made within a brief and defined period
and speedy access to judicial review was not present. Thus the permit
requirements of the ordinance were also invalidated. 207
feel that the Central Hudson test has moved in the direction of strict scrutiny analysis,
especially in light of 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). See
Kathleen Sullivan, Cheap Spirits, Cigarettes and Free Speech: The Implications of44
Liquormart, 1996 SUP. CT. REV. 123, 128, 141-42 (1997).
207. In a later opinion the court reaffirmed its finding that the permit requirements
violated the Freedman guidelines for prior restraints. Prompt review to an architectural
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[v] City of Painesville Building Dep't v. Dworken & Bernstein
Co., L.p.A. 208
The city's sign ordinance prohibited the posting of political signs except for certain designated periods preceding and following general or
special elections. The ordinance defined a political advertising sign as
any sign "concerning any candidate, political party, issue, levy, referendum, or other matter whatsoever eligible to be voted upon...." In
addition, the ordinance required a permit and payment of a fee for the
placement and use of such signs. The city issued a notice of violation
against a law firm for violating the political sign provisions of its ordinance. The law firm attacked the constitutionality of the restrictions.
The court noted in general that a narrowly drawn ordinance may
constitutionally impose reasonable time, place, and manner restrictions
on the display of temporary signs, including yard signs posted on public
property. The city sign ordinance, however, did not come close to passing constitutional muster when it was applied to prohibit the owner of
private property from posting a single political sign on that property
outside the durational period set forth in the ordinance. The posting of
political signs is virtually pure speech given the highest level of protection afforded by the First Amendment. The court rhetorically asked
itself whether the ordinance was content-based or content-neutral. If
content-based, the applicable strict scrutiny test would universally require invalidation. If content-neutral, then one of a number of tests
could be applied. The court never directly answered that question, instead relying on Ladue and its emphasis on the need to protect political
signs. Since the durational limits in the ordinance only applied to political signage, it might be hard to argue that the ordinance was contentneutral. But the court applied the narrowly tailored analysis usually
reserved for content-neutral ordinances. The court agreed with the
many pre- and post-Ladue decisions that invalidate durationallimits on
political signs. 209 Political speech is not only relevant immediately before an election. The ordinance went way beyond the limits to achieve
review board is insufficient since review must be by an independent branch of government. In addition, in Nightclubs, supra at § 1.04[2][a][xi], the Sixth Circuit found that
a licensing scheme must not merely provide access to prompt judicial review, but must
ensure a prompt judicial determination in order to satisfy Freedman. N. Olmsted Chamber of Commerce v. N. Olmsted, 108 F. Supp. 2d 792 (N.D. Ohio 2000).
208. 733 N.E.2d 1152 (Ohio 2000).
209. See, e.g., Whitton v. Gladstone, 54 F.3d 1400 (8th Cir. 1995); Dimas v. Warren,
939 F. Supp. 554 (E.D. Mich. 1996); Orazio v. N. Hempstead, 426 F. Supp. 1144
(E.D.N.Y. 1977); Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, Inc.,
467 S.E.2d 875 (Ga. 1996); Collier v. Tacoma, 854 P.2d 1046 (Wash. 1993).
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the governmental objectives dealing with safety, aesthetics, and traffic
concerns. The court suggested that political signs may be regulated as
to matters relating to their construction, the amount of signage allowed,
and the need to remove a temporary political sign. But the type of
regulation imposed by the city went too far in restricting political
speech.
[vi] Marathon Outdoor LLC v. Vesconti2 lo
In June 1999, plaintiff received several permits to construct a billboard.
The signs were to be accessory building signs, as defined by the city
sign ordinance since they would advertise the name of the business at
the location of the sign. The billboard structure was completed when
the city notified the plaintiff that it intended to rescind the permits
because the sign would violate several performance standards contained
in the ordinance. The city believed that the sign would be an offsite
commercial sign that was prohibited within 200 feet of any arterial
highway. Plaintiff then filed this § 1983 action asserting that the city
sign ordinance violated its First and Fourteenth Amendment rights.
While the court found that the plaintiff might suffer irreparable injury
should a preliminary injunction against enforcement of the ordinance
be granted, the court found that plaintiffs had not shown a substantial
likelihood of success on the merits. As to the regulatory takings and
equal protection claims, they were not ripe for review under Hamilton
Bank. Plaintiff had not exhausted its administrative remedies regarding
appealing the permit revocation decision. Even if the equal protection
claim was ripe, it would still not succeed because all that plaintiff alleged was that the city changed its interpretation of the ordinance to
apply certain performance standards to pole signs or billboards. There
were no allegations of selective treatment or enforcement based on
some impermissible consideration. Without relying on Olech, the court
required the plaintiff to prove that the city intended to inhibit the exercise of its constitutional rights.
The plaintiff also claimed that the prohibition of offsite commercial
signage within 200 feet of an arterial highway violated the First Amendment. The court agreed with the approach taken in Knoejjier, that the
four-part Central Hudson test should be applied. Differentiating between onsite and offsite commercial signs was consistent with Metromedia. There was no content-based regulation as the district court had
found in North Olmsted. The restrictions on commercial speech
210. 107 F. Supp. 2d 355 (S.D.N.Y. 2000).
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achieved the legitimate objectives of traffic safety and aesthetics. The
court found the ordinance sufficiently narrowly tailored. The regulations affecting the physical size and dimensions of the sign were also
upheld as being appropriate time, place, and manner restrictions.
§ 1.05 Subdivision Regulation
[1] Impact Fees
[aJ AMERICAN FABRICARE v. TOWNSHIP OF FALLS 21 I
Plaintiff sought to establish a laundromat business in leased space in a
shopping center. The township would only issue the certificate of occupancy if plaintiff would pay additional sewer tapping fees due to the
large amount of wastewater discharge from the premises. Plaintiff filed
an "omnibus" due process and equal protection challenge. Initially the
court found that the fees were not ultra vires. Plaintiff had argued that
the township lacked authority to impose such fees. Under the enabling
act, tapping fees may be charged if they are based on capacity, distribution or collection, special purposes, or reimbursement of expenses
factors. There was ample authority to impose such fees and the resolution adopting the fees and the special fees in this case were not arbitrary or capricious.
On the due process and equal protection § 1983 claims, the court
applied a rational basis test to determine the validity of the sewer tapping fees. The court found that Olech was not applicable to the facts
in this case because there was no proof that the township had acted
irrationally or arbitrarily. In fact the evidence showed that the higher
fees were entirely justified based on the high-volume wastewater discharge. Thus, plaintiff s motion for summary judgment on the equal
protection claim was\ denied.
On the substantive due process claim, the court noted the tension
between federalizing land-use law and protecting landowners from allegedly arbitrary or irrational municipal regulations as expressed in
Gretkowski. In cases where the permit denial decision is supported by
a rational basis, no substantive due process claim arises. Even though
the sewing facilities planning module for the shopping center was approved without the higher fees, an assumption in that module was for
limited amounts of wastewater. The laundromat's heavy use of water
provided the rational basis for the permit denial and departure from the
planning module.
211. 101 F. Supp. 2d 301 (E.D. Pa. 2000).
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[b] VOLUSIA COUNTY v. ABERDEEN AT ORMOND BEACH, L.p. 212
In an important decision limiting the ability of local governments to
impose impact fees, the court invalidated a county public school impact
fee as applied to a mobile home park that provided housing for senior
citizens. The development utilized a series of covenants, conditions,
and restrictions (CCRs) to set a minimum age requirement for residents. 213 There were no provisions allowing the age requirement to be
waived. While there was a general right retained by the developer to
amend the CCRs, that declaration had not been recorded and was therefore not enforceable. In 1992 the county enacted a countywide public
school impact fee on new dwelling units. Excluded from the definition
of dwelling units were nursing homes, group homes, and adult living
facilities. Due to litigation, this ordinance was replaced by another impact fee ordinance that effectively lowered the fee and permitted adjustments to deal with the costs of constructing new schools. The ordinance employed a student generation rate to determine the average
number of public school students per dwelling unit. The developer had
paid, under protest, nearly $87,000 in impact fees for eight-four new
homes.
The court had to deal with its earlier decision in St. Johns County v.
Northeast Florida Builders Ass'n, Inc. 214 In that case the court upheld
a public school impact fee, even though it was applied to dwelling units
without children. The court found that there was still a rational nexus
between new dwelling units and demand for public schools that was
sufficient to uphold the impact fee, at least against a facial invalidity
challenge. The court also noted that in St. Johns, the ordinance provided
that individual adjustments to the impact fee could be made. Since in
this case, the developer was challenging the application of the impact
fee to its new dwelling units, the court did not have to explore the
general issue of the required nexus between the development and the
need for the impact fee.
One issue that must be resolved is whether the development is truly
age-restricted so that no public school-age children may reside in a new
dwelling. The key contention of the county was that the developer
retained the right to amend the age restrictive CCRs. But as noted
above, that reservation was contained in a document that was never
recorded, and therefore under Florida law, could not be enforced against
212. 760 So. 2d 126 (Aa. 2000).
213. The restrictions were tailored to comply with the exemption of such actions
from the application of the Fair Housing Act. 42 U.S.c. § 3607.
214. 583 So. 2d 635 (Aa. 1991).
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the homeowners. Thus, the court looked to the recorded CCRs that
clearly prohibit a minor from permanently residing within the community as the controlling legal document.
Under Florida law, an impact fee must meet a dual nexus test, showing connections between the need for additional capital facilities and
the growth in population caused by the subdivision, and between the
expenditures of the funds collected and the benefits accruing to the
development. This dual rational nexus test is not applied on a countywide basis. Instead there is a need for a specific need/special benefit
analysis. The fee must provide a "unique benefit" to those paying the
fee and must not be a stealth tax whereby there is a generalized benefit
to everyone. 215 Because of the age restrictions, the county cannot show
that there is any benefit to those paying the fee. Clearly this development does not increase the need for new public schools. The applicable
student generation rate when attached to this type of development failed
the rational nexus test. The court also found that there were no special
benefits to the new residents who would be paying the fee. While they
received the general benefit of having new schools, that is insufficient
to justify the impact fee.
[c] HOME BUlWERS ASS'N OF DAYTON AND THE MIAMI
VALLEYv. CITY OF BEAVERCREEK216
In a case of first impression, the Ohio Supreme Court reviewed the
constitutionality of a municipal roadway impact fee. The city adopted
its impact fee in 1993 and later amended it in 1995. The impact fee
was adopted to allow the city to recover the costs of constructing new
roadways. The fee was designed to eliminate the need for developers
to make offsite improvements. The ordinance divided the city into districts and prepared estimates for the cost of improvements necessitated
by full development of each impact fee district. Estimates were also
given of generated automobile trips for the type of new development
expected. The city subtracted from the total cost figure a percentage of
the total cost based on the number of pass-through auto trips. A further
deduction was made based on other sources of roadway funds. The
ordinance provided an appellate procedure dealing with individual de215. See Collier County v. State, 733 So. 2d 1012 (Aa. 1999). The court found that
an "interim governmental services fee" designed to recapture the "lost" assessments
where property improvements occur after January 1 of each year was a tax and not a
fee. Since the county did not have the power to impose such an ad valorem tax, the
ordinance was ultra vires.
216. 729 N.E.2d 349 (Ohio 2000), reconsideration denied, 732 N.E.2d 1002 (Ohio
2000).
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velopment allocations. It also contained a credit system for dedication
and other types of benefits. The funds generated by the fee are to be
used for capital improvements within the impact fee district where the
funds are generated. The funds cannot be used for normal maintenance
of roadways. There was no time limit on when the funds could be
expended.
Under Ohio's constitutional home rule provision, municipalities have
the power to impose impact fees so long as they are consistent with
state law and not violative of any constitutional prohibition. While the
court of appeals decision was concerned with whether the ordinance
imposed a fee or a tax, the supreme court determined that the labeling
was not critical to the court's decision. The court also rejected the court
of appeals analysis that required cities to have a matching funds provision in order for impact fees to be valid. 217 While the presence or
absence of matching funds may be relevant in determining the constitutionality of an impact or regulatory fee, it is not determinative. The
appropriate test is "whether the fee is in proportion to the developer's
share of city's costs to construct and maintain roadways that will be
used by the general public."218
The court applied the dual rational nexus test as gleaned from Nollan
and Dolan and applied by the Florida Supreme Court in Volusia County.
A court must determine:
(1) Whether there is a reasonable connection between the need for additional capital
facilities and the growth in population generated by the subdivision; and (2) if a
reasonable connection exists, whether there is a reasonable connection between
the expenditure of funds collected through the imposition of an impact fee and the
benefits accruing to the subdivision. 2I9
The first prong of the test looks to how the fee is calculated, while the
second looks to see how the monies are expended. The court noted the
difference between the dual rational nexus test and the reasonable relationship test of Walnut Creek, and the specifically and uniquely attributable test of Pioneer Trust. In choosing the middle ground between
a more lenient and a more rigorous standard, the court tried to balance
the public and private interests. The burden of proof is placed on the
city.
In applying the test to the city ordinance, the court found that both
prongs of the test had been satisfied. The methodology used by the city
217. The basis for the matching funds requirement comes from two decisions,
Towne Prop., Inc. v. Fairfield, 364 N.E.2d 289 (Ohio 1977), and Bldg. Indus. Ass'n
of Cleveland & Suburban Cities v. Westlake, 660 N.E.2d 501 (Ohio Ct. App. 1995).
218. Home Builders Ass'n of Dayton, 729 N.E.2d at 354.
219. [d. at 354-55.
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to determine the need for roadway improvements caused by the new
development must be based on generally accepted traffic engineering
practices. The evidence at the trial court proved that the city followed
the necessary steps in calculating the fee. It developed a comprehensive
plan for the impact fee districts, it provided for regular review of those
plans, it established an inventory of existing roadways and it determined the cost of new facilities needed to accommodate the expected
new development. While there may be some disputes as to the specific
methodology or assumptions used, it is not the role of the court to
second-guess the city's choices. If the methodology chosen is reasonable, a court should not disturb the city's decision. As to the second
prong the court looked at several factors, including the lack of matching
funds, the system of credits, and the lack of a time period for expending
the funds. None of those factors militated against the constitutionality
of the ordinance given the reasonable methodology employed by the
city that tied in expenditures to the needs of the different impact fee
districts. 22o
[dl GREATER FRANKLIN DEVELOPERS ASS'N, INC. v. TOWN
OF FRANKLIN221
After undergoing rapid growth between 1980-95 necessitating the
building of a new school, the town employed a consultant to plan for
the expected growth. The consultant predicted that a new school would
have to be built before 2000 to keep up with the expected population
growth. The town enacted a school impact fee in 1995 to shift some of
the capital expenditure burdens of the new schools to the development
that was going to cause the need. The fee schedule was based on a
formula that each family house would bring in 0.68 children while each
condominium unit would bring in 0.25 children. The money received
was to be earmarked to cover the expansion of existing schools and
had to be expended within eight years. None of the money was to be
used for maintenance purposes.
Massachusetts towns do not have the power to tax, but they do have
the power to exact fees. Thus, unlike Beavercreek, the characterization
issue is outcome-determinative. The court noted that fees are normally
charged in exchange for a particular governmental service that benefits
the party paying the fee, the fee is normally voluntary, and the fee is
not designed to raise revenue but to compensate the governmental en220. This was a 4-3 decision. Two dissenters argued that this was a tax and that
they would favor a stricter test. Id. at 358-59 (Pfeifer, J. dissenting).
221. 730 N.E.2d 900 (Mass. App. Ct. 2000).
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tity for the funds expended to provide the service. The court found that
there may be no direct benefits accruing to the fee payers since the
benefits of new school facilities touch all of the residents, not just the
new residents. The court also found that the payment of the fee is truly
not voluntary, in the sense that if you want to build a new residential
unit in the town you have to pay the fee. Finally, the court found that
the basic nature of the fee is really to raise additional revenue to cover
the capital expenditures of operating a school system. The court rejected the application of the dual rational nexus test as described in
Volusia County in part because the issue in this case deals with the
legislative denial of the power to tax, rather than the constitutional
limits on imposing impact fees. Instead of following the modern trend
of treating impact fees as such, the court relied on several older cases
where the court found these fees to be hidden taxes. 222
[el ClMATO BROS., INC. v. TOWN OF PENDLETON223
The town enacted a public improvement permit ordinance that imposed
a 10 percent fee upon contractors and developers for inspection services
conducted by the town. The town had not engaged in any statistical
study prior to the adoption of the ordinance to estimate the total costs
of the services. It merely estimated that a fixed fee of 8 percent was
needed and then tacked on an additional 2 percent to ensure that the
fees would cover the town's costs. Plaintiff challenged the ordinance.
It proffered evidence that all of the surrounding towns used a sliding
scale fee structure. Plaintiff had the burden to show that the fee structure
was unreasonable or arbitrary. It satisfied that burden by showing that
the town had reimbursed individual contractors on an ad hoc basis when
it determined that it was charging too much. While the ordinance set
forth various duties of the town engineer, there were no guidelines
regarding the nature or extent of the services to be accomplished. This
lack of uniformity and predictability, as well as the lack of statistical
support, show the arbitrary nature of the fee.
[2] Subdivision Regulation
[al ASS'N OF RURAL RESIDENTS v. KITSAP COUNTY224
Under Washington's Growth Management Act (GMA), local governments are required to enact comprehensive plans that meet state222. See, e.g., Emerson CoH. v. Boston, 462 N.E.2d 1098 (Mass. 1984); Daniels
Point Pleasant, 129 A.2d 265 (N.J. 1957).
223. 705 N.Y.S.2d 468, app. denied, 734 N.E.2d 1212 (N.Y. 2000).
224. 141 Wash. 2d 185, 4 P.3d 115 (2000).
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mandated minimums. A developer sought approval of a planned unit
development (PUD) consisting of 106 lots on a l23-acre tract. At the
time of the application the county's zoning ordinance only permitted
an overall density of one unit/2.5 acres. The ordinance, however, allowed the density to be increased to one unit/one acre provided that the
PUD proposal is "not unreasonably incompatible" with the surrounding
area. The surrounding area was largely undeveloped. In response to the
developer's preliminary plat and PUD application, the county issued a
mitigated determination of nonsignificance (MDNS) under the State
Environmental Protection Act. After several administrative appeals
brought by the plaintiff, the county approved the plat and PUD as proposed, even though one of the reviewing officials recommended that
the PUD be limited to seventy units. The parcel was located outside of
the county's interim urban growth area (IUGA) as designated under the
GMA.
One of the key issues is what land-use regulations were in effect at
the time the developer submitted his applications on December 15,
1994. Because the county's comprehensive plan and IUGA designations were not in effect at that time due to their inadequacy under state
law, the developer is entitled to have the pre-application ordinance apply to his plans. Washington generally follows an early vested rights
rule requiring the ordinances and regulations in effect at the time of the
initial application to govern throughout the review process. 225 Plaintiff
argued that where a PUD application is filed, a different rule should
attach since it is merely the opening salvo in what will be a lengthy,
negotiated review process. The court disagreed, however, and concluded that when a PUD application is joined with a preliminary plat
approval request, the vested right attached to the entire application,
including the PUD. Since the combined application included not only
a subdivision plat but a development proposal, the right to develop as
well as the right to subdivide should be vested. 226 The court also found
that the MDNS ruling should be reviewed under the deferential clearly
erroneous standard. The court is only to determine if the county reviewed the environmental evidence as required by the statute and is not
to engage in a de novo review substituting its judgment for that of the
county's.
225. Noble Manor v. Pierce County, 943 P.2d 1378 (Wash. 1997).
226. Schneider Homes, Inc. v. City of Kent, 942 P.2d 1096, (Wash. Ct. App. 1997),
rev. denied, 958 P.2d 316 (Wash. 1998).
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[b] EQUICOR DEVELOPMENT, INC. v. WESTFIEWWASHINGTON TOWNSHIP PLAN COMM'N221
Plaintiff was the contract-purchaser of a 27.2-acre tract of land zoned
for medium density residential development under the township's zoning ordinance. It submitted a preliminary subdivision plat for approval
that met all of the requirements under the then-existing ordinance, including a density cap of eighty-two lots. During the plat review process
the town council suspended the operation of the extant zoning ordinance while it considered a comprehensive amendment to its land-use
ordinances. Eventually the plat was rejected by the commission. During
the public hearings there was some commission sentiment to have the
plaintiff reconfigure the plat to provide for more open space through a
clustering pattern.
The scope of judicial review of an administrative decision to deny a
plat is the substantial evidence test. The court found that under the
zoning ordinance, the developer must have two onsite and one-half
offsite parking spaces available for each one to three bedroom units
being developed. The plat did not indicate the number and location of
parking spaces and therefore there was substantial evidence in the record to support the denial decision. The court remarkably, however,
found that the decision to deny preliminary plat approval was arbitrary
and capricious notwithstanding its earlier finding that substantial evidence supported the decision. The denial decision was deemed to be
arbitrary and capricious using an equal protection, selective enforcement claim. Plaintiff argued that similar subdivision plats had been
approved without parking space designations and the only reason for
the denial here was the commission's attempt to have the new zoning
ordinance's standards apply. Even though the parking space problem
provided substantial evidence in the record, the review of the plat by
the staff had not identified that as a reason to deny the plat application.
The records of the hearings clearly indicated that the officials were
concerned with density and design issues, not parking spaces. Therefore, the developer was entitled to have its plat approved. 228 The court
explored the motives of the decision-makers here and clearly substituted its judgment for that of the township's. If the decision is otherwise
supportable, as the court concluded, whatever ulterior motive may have
driven the decision-makers should have been ignored by the court.
227. 732 N.E.2d 215 (Ind. Ct. App. 2000).
228. A dissenting judge noted the inconsistency in the majority's view of the actions
of the commission. He argued that the selective enforcement claims and the fact that
staff review had not singled out the parking space problem did not make the decision
arbitrary or capricious. Id. at 224 (Sharpnack, C.J., dissenting in part).
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[c] MEDINA COUNTY COMM'RS COURT v. INTEGRITY GROUP 229
In 1993 the developer initially sought approval from the county to
subdivide a 4.843-acre tract into sixteen lots. The developer amended
his plat to create a seven-lot subdivision that was approved by the court.
The developer received approval from the local special district providing wastewater services and in addition received TNRCC approval for
its water pollution abatement plan. When the developer sought final
plat approval, the county denied the application because the developer
had not met the one-acre minimum lot size requirement for subdivisions
whether they are located inside or outside of the Edwards Aquifer Recharge Zone (EARZ). TNRCC also had the same minimum lot size
requirement for its permit, but the subdivision had been filed prior to
the minimum lot size requirement taking effect. In addition, most of
the subdivision fell outside of the EARZ and was subject to Texas Water
Development Board regulation, not TNRCC regulation.
Under Texas law the authority of the commissioners court to approve
subdivision plats is not discretionary if the plat meets the statutory
requirements. 23o A county is without power to impose requirements for
a subdivision other than that contained in the statute. The statute does
not provide for a minimum one-acre lot size. The county argued that it
had power under other enabling statutes dealing with private sewage
facilities to require a minimum one-acre lot size. But the area within
EARZ was subject to state, not county, regulation. Under state law a
county government can have a more stringent regulation than that provided for by TNRCC if it gets approval of those rules by TNRCC.
While the developer asserted that the county had never received
TNRCC approval, there was no competent summary judgment evidence on that issue. Thus, the granting of mandamus relief by the trial
court was improper until the fact issue was resolved.
[d] MILES
V.
FOLEY231
Under Connecticut law,232 if a subdivision plat is not approved, modified or disapproved within the statutory time limits, it is deemed approved. The law also required the planning and zoning commission to
state the grounds for its actions. In May 1996, the plaintiff submitted
a subdivision plat for approval. It was rejected the following day because it was determined to be premature. After the sixty-five-day stat229.
230.
231.
232.
21 S.W.3d 307 (Tex. App. 1999).
TEx. LOCAL GOV'T CODE § 232.001-.002.
752 A.2d 503 (Conn. 2000).
CONN. GEN. STAT. § 8-26.
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utory period passed, plaintiff sent a demand letter stating that the plat
had been deemed approved under the statute. The commission disagreed with that conclusion and plaintiff brought this action in the form
of a writ of mandamus to compel the commission to approve the plat
as submitted. The trial court concluded that the action taken to reject
the application was action within the meaning of the statute and thus
refused to issue the write of mandamus.
The issue is whether the "rejection" of the plat as premature constituted an approval, conditional approval, or disapproval as required by
the statute. An earlier Connecticut decision 233 had found that a rejection
of a plat because an identical plat was the subject of ongoing litigation
was a sufficient action under the statute to avoid the "deemed approved"
result mandated by the statute for local inaction. Even if the commission's actions are arbitrary or ultra vires, they are still actions that
comply with the statute. The objective of the statute is to avoid dilatory
review tactics and to ensure expeditious actions. Even though the commission did not get to the merits of the case, it took expeditious action.
Thus, the automatic approval doctrine contained in the statute was not
triggered. Plaintiff could have sought an administrative appeal of the
commission's rejection decision. Because an appeal was available, no
writ of mandamus should be issued.
[e] COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY v DUTCHER234
The owner submitted a subdivision plat application to the MarylandNational Capital Park and Planning Commission in order to develop
an 8.83-acre parcel into twenty lots for single-family residential purposes. Under the county subdivision ordinance, the owner had the burden of proof to show the county planning board that there would be
adequate access to roads to serve the traffic generated by the subdivision. The planning board studied the application and the staff initially
recommended disapproval because traffic at a key intersection would
be adversely affected. At a planning board public hearing suggestions
were made to the owner to adopt the provisions of a mitigation plan.
After agreeing to fund a share of the needed improvements specified
in the mitigation plan, the planning board issued a conditional approval.
A neighborhood association appealed the board's decision to the county
council. The council remanded the case to the board and ordered them
to solicit comments from several state agencies. After supplementing
233. Winchester Woods Assocs. v. Planning & Zoning Comm'n, 592 A.2d 953
(Conn. 1991).
234. 752 A.2d 1199 (Md. Ct. Spec. App. 2000).
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the record, the board reaffirmed its original decision and another appeal
was taken to the county council. The council reversed the board's decision and denied the mitigation plan. A trial court found that the council should have given more deference to the board's decision and that
the facts in the record did not support the council's decision.
The court initially discussed whether the appeal from the trial court's
decision was done in a timely fashion. It found that the appeal was not
timely, since the council had not authorized an appeal within the thirtyday period and that the council's attorney did not have the power to
file the appeal without such authority. The court, in dicta, then analyzed
the appropriate scope of judicial review of plat approval decisions. In
Maryland, judicial review of administrative agency decisions is very
deferential. While applying a substantial evidence test, there is a strong
presumption of validity. The court defined the substantial evidence test
using the classic Euclidean language of "fairly debatable," a scope of
review better suited for review of legislative rather than adjudicatory
decisions. The issue under Maryland law was whether the council acts
in an appellate or de novo review position vis-a-vis the board's decision. The court concluded that the council's role was akin to that of an
appellate court, and therefore it must give deference to the board's
findings of fact and conclusions. 235 Thus, when the appellate court reviewed the decision, it focused on the decision of the board, not on the
decision of the council. The court found that the board carefully studied
the plat and its impact on traffic. While it did not conduct an independent traffic study, it relied on other plat decisions that had reached a
similar conclusion to support its mitigation plan. The mitigation plan
sufficiently dealt with the traffic issues in a way that was consistent
with the performance standards contained in the ordinance and regulations. Thus, the board's decision was at least fairly debatable and
supported by substantial evidence.
[f] HEIDRICH v. CITY OF LEE'S SUMMlp36
Developers of a residential subdivision had carried on a long-standing
feud with the city regarding the development of an adjacent 138-acre
parcel. The land had been annexed into the city in 1992 and was zoned
for a planned business district. Various site plans were adopted for a
phased development of the acreage, some of which were invalidated
by the court. In 1996 a preliminary site or development plan was sub235. See County Council of Prince George's County v. Curtis Regency, 708 A.2d
1058, cert. denied, 715 A.2d 964 (Md 1998).
236. 26 S.W.3d 179 (Mo. Ct. App. 2000).
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mitted by an owner of a portion of the parcel. This precipitated a need
to amend the original site plan for one of the phases of the development. Eventually the city approved the amendment to the site plan. The
neighbors then brought this action asserting that the decision, including
a decision to amend the zoning ordinance, was arbitrary and unreasonable.
The scope of judicial review of either a site plan approval decision
or a rezoning ordinance is quite limited. The court applied the "fairly
debatable" standard under its general arbitrary and capricious test. All
uncertainties about the decision were resolved in favor of finding the
governmental decision valid. One argument raised by the neighbors was
that the ordinance required development tracts of at least two and onehalf acres in size, while this particular development plan only affected
a little less than two acres. But the development proposal was part of
a larger proposal that was larger than two and one-half acres. The court
also dismissed the claim that the city had not conducted an adequate
traffic study. The issue of traffic congestion was raised during the public
hearings and the city planner testified that he did not believe a study
was required to deal with the modifications to the original site plan.
The preliminary site plan contained a condition of a unifying architectural scheme. The court minimally reviewed the architectural plans in
concluding that the proposed new development was consistent with the
overall architectural scheme for the office park. All of the claims of the
plaintiff regarding the decision were within the sound discretion of
the city. There was no evidence that the discretion afforded the city
was exercised unreasonably or arbitrarily.
[g] VILlAGE OF KEY BISCAYNE v. TESAURUS HOLDINGS, INC.
237
In February 1998, the village granted provisional approval to Tesaurus
for several variance and special exception requests for a mixed-use
development. The approval was specifically conditioned on site plan
review at a later date of the proposed residential development. The
provisional approval constituted a finding that the proposed development complied with the master plan. In August 1999, the developer
returned with the site plan encompassing the residential development.
The village disapproved of the site plan since it was inconsistent with
the general plan. The developer sought judicial review.
The trial court found that the site plan denial was a violation of the
developer's due process rights triggered by the original approvals. The
237. 761 So. 2d 397 (Ha. Dist. Ct. App. 2000).
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developer had the burden to show that the site plan was consistent with
the master plan. Since the master plan did not allow for residential
development in the area subject to the plan, there could be no property
interest in having the site plan approved. Approval of the site plan
would have required a finding of consistency. That was impossible and
thus there could be no violation of the developer's due process rights.
[h] HILL v. CITY OF CLOVIS238
Plaintiff's predecessor in interest executed a subdivision agreement
with the city whereby the subdivider would provide certain street, landscaping, and irrigation improvements. A subsequent agreement between the plaintiff and the city required a $55,000 right-of-way acquisition fee but gave the plaintiff a credit in fees for constructing the
central travel lane improvements. Final subdivision map approval was
given the plaintiff who completed the subdivision, but never completed
the improvements as promised. Several years later the parties entered
into another agreement whereby plaintiff agreed to construct public
road improvements in another part of the city. The city never paid the
plaintiff for the cost of the improvements. Plaintiff sought a declaratory
judgment as to the status of his deposit and the credit and the unpaid
contract price, while the city cross-complained for damages, measured
by the cost of having the improvements completed by a third party and
a set-off against the amount owed under the later contract. The trial
court basically offset both of the parties' claimed amounts, but awarded
the city attorney fees.
The court applied the Subdivision Map Act. 239 The Act specifically
deals with the relationship between a subdivider and a city, especially
where the city is requiring improvements be made by the subdivider.
If the subdivider is obligated to build improvements, the city has 120
days from the filing of the final plat to acquire the interest in the land
where the improvements are to be made. In this case the city failed to
acquire title to the land within that time period. Under the Act the local
government has two options in connection with offsite improvements.
It can require all improvements be completed prior to final map approval or it may approve the final map and execute a mutual agreement
with the subdivider to complete the improvements. The court interpreted the Act's time period as only applying where map approval is
refused by the city and not where final map approval is granted. Since
the city approved the final map, the 120-day time period did not apply
238. 94 Cal. Rptr. 2d 901 (2000).
239. CAL. GOV'T CODE §§ 66410.
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and therefore the subdivider was obligated to make the improvements
even though the city did not acquire title to the lands until well after
the deadline had passed.
[i] SMITH v. CITY OF EUFAULA PLANNING COMM'N240
Smith filed a planned unit development (PUD) with the commission
seeking to develop a 36-acre tract for manufactured housing. After a
public hearing, the commission conditionally approved the PUD. Smith
was required to provide for perimeter fencing and an engineering report
regarding the adequacy of water pressure to serve fire control needs.
The city eventually filed a report showing a lack of water pressure and
the commission withdrew its conditional approval. After a year a second PUD application was filed and additional testimony proffered
showing that steps would be taken to improve water pressure in the
area. The application was not approved on a three-to-three vote of the
commiSSIOn.
Under Alabama law, a commission must approve or disapprove a
PUD or subdivision plat application within thirty days of submission.
The court interpreted the statute as treating a tie vote as a vote to
disapprove. The statute also required the commission to state its reasons
for its disapproval in writing. The court found that the record of the
hearing and the minutes of the commission satisfied the writing requirement. Extensive discussions were held regarding the water pressure issue that showed why the commission was not going to approve
the PUD.
[j] URRUTIA v. BLAINE COUNTY241
This case involved two separate subdivision plat applications. Both
developers submitted plats for acreage located in a rural residential zone
allowing density no greater than one unit per 20 acres. The planning
and zoning commission recommended both be approved. Both preliminary and final plat approvals were granted. A neighbor challenged both
decisions and the trial court remanded the decisions to the county board
of commissioners. Given a second opportunity the board voted to deny
both plats as not conforming to the comprehensive plan.
In Idaho, judicial review of an administrative zoning decision by the
trial court is treated as appellate review. Further review by the Idaho
Supreme Court is not of the trial court's decision, but of the agency
decision and the agency record. Agency findings of fact are deferred
240. 765 So. 2d 670 (Ala. Civ. App. 2000).
241. 2 P.3d 738 (Idaho 2000).
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to unless clearly erroneous. Thus, the district or appellate court should
not substitute its judgment for that of the agency even if there was
conflicting evidence in the record. The agency decision will be reviewed under the substantial evidence test to see if the decision was
arbitrary, capricious, or an abuse of discretion. Idaho treats the comprehensive plan as only a guide for development. There is no mandatory
consistency requirement between the plan and the zoning or subdivision
ordinance. The county had originally found that both plats complied
with the zoning and subdivision ordinances, but one of the two did not
meet the requirements of the plan. The county subdivision ordinance
required the plat to conform to the comprehensive plan, but the court
found that the only compliance required is that the plat comport with
the overall objectives and goals of the plan. There is no independent
plat requirement of consistency with the plan. Thus, the county's decision to reject both plats on that basis was in violation of its statutory
mandate. The court in dicta also found that one of the two plats was
filed prior to the effective date of the 1994 comprehensive plan. Idaho
has an early vesting rule so that the ordinance in existence at the time
of the filing of the application applies even though it may be amended
later.
[k] CATHEDRAL PARK CONDOMINIUM COMM. v. DISTRICT
OF COLUMBIA ZONING COMM'N242
Developers wanted to construct a nine-story addition to an existing
apartment building that was listed as a historic landmark. The site abutted the National Zoo and a portion of Rock Creek Park. The developer
planned to follow the original designs for the addition that were abandoned in the 1930s due to the Depression. The developer planned to
rehabilitate portions of the tract near the park. The site was located in
a MFR zoning district whose floor area ratio (FAR) requirements would
be violated by the proposed addition. In order to implement the plan,
the developer filed a PUD application with the commission and sought
rezoning relief from the FAR restrictions. The developer also sought
waivers or variances from some other performance standards including
rear yard requirements. After several public hearings where the neighborhood committee participated, the commission approved the PUD
finding that it would be consistent with the comprehensive plan.
Judicial review of a PUD decision is limited and deferential under
the arbitrary, capricious or abuse of discretion standard. In addition, the
court applied the substantial evidence test to review the commission's
242. 743 A.2d 1231 (D.C. App. 2000).
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findings of fact. Deference was also given to the agency's interpretation
of its own regulations and ordinances. Plaintiff argued that the increased
density allowance clearly violated the plan's objectives of only allowing low-density development. In reviewing the commission's decision
the court looked at various portions of the plan and its density objectives. The court found that the PUD's higher density levels were tempered by the large lot and the amount of open space that would be left
even after the expansion. The court excused the commission's failure
to address the plan's objective that development around historic parks,
such as the National Zoo, be low density, because overall the project
appeared to be consistent with the plan. Another plan objective was to
create buffer zones between developed areas and parks. The commission determined that the tree preservation plan and open space areas
were sufficient to meet that requirement. There would be little visual
impact on both Rock Creek Park and the National Zoo. The court also
deferred to the commission's interpretation of its regulations relating
to the preservation of open space. Infill development was specifically
mentioned in the plan as something that needed to be reviewed closely
to determine that open or green space not be eliminated. But the court
remanded the decision to the commission to revisit the question of
consistency between the open space portions of the plan and the PUD.
The court found that the commission analyzed the effect of the addition
on the historic architectural features of the existing building. There was
substantial evidence in the record to support the findings that there
would be no adverse effects caused by the addition. Finally, the court
deferred to the commission's analysis and findings regarding the waiving of various standards that were needed to allow the PUD to be
constructed.
[I] DAVIS v. PLANNING BD. OF THE CITY OF SOMERS POINF43
In January 1991, McDonald's received preliminary site plan approval
for one of its restaurants that included several variances and waivers.
A New Jersey statute in 1993 automatically extended the preliminary
site plan approval through December 31, 1996. In January 1997,
McDonald's sought a further extension as allowed by statute through
December 31, 1997. In August 1997, it filed for final site plan approval
that reduced the size of the building and the interior seating and
changed some of the access points. Plaintiff participated at the planning
board public hearing and argued that the board had no jurisdiction to
243. 744 A.2d 222 (N.J. Super. 2000).
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vote on the final site plan, since there had been significant changes from
the preliminary site plan. The board disagreed with this contention and
approved the final plan. Under New Jersey law, the filing of the preliminary plan insulated the applicant from future changes in the zoning
ordinance. The statute also only required the preliminary site plan to
be in tentative form for discussion purposes. Modifications to the preliminary site plan are to be expected and thus in order to cross the
threshold of significant changes which require a new preliminary site
plan, the changes must substantially change the nature and impact of
the planned development. In this case, the downsizing of the building
and the access changes did not amount to a substantial or significant
change. 244 On the merits, the scope of judicial review of the board's
site plan decision is limited to determining whether the decision meets
the legal requirements and is founded on adequate evidence. While
plaintiff argued that there would be substantial negative externalities,
the court found that the approval of the final site plan was consistent
with the preliminary site plan and the ordinance.
[m] BLAHA v. BD. OF ADA COUNTY COMM'RS245
In May 1996 the owners of a 40-acre tract sought preliminary plat
approval for an eight-lot subdivision. The Eagle City Council reviewed
the plat since it was within an area of city impact even though it was
located outside of the city's boundaries. As the city began reviewing
the final plat application, several neighbors stated their opposition to
the development and argued that the private road designated to provide
access failed to meet city street standards. The city went ahead and
approved the plat subject to several conditions including compliance
with the Ada County Highway District (ACHD) regulations. The developers then sought two variances to avoid having to comply with a
number of county regulations. The board approved the plat and noted
that to comply with ACHD regulations, the public road/private road
intersection would have to be extensively reconstructed, which was not
needed given the small number of vehicle trips generated by the new
subdivision. The board also found that the private road was in substantial compliance with city street standards. The board thus approved the
plat and the neighbors sought judicial review.
244. In Macedonian Orthodox Church v. Planning Bd. of Randolph. 636 A.2d 96
(N.J. Super. 1994), the court found a significant change where the building and parking
area were doubled in size between the preliminary and final site plans.
245. 9 P.3d 1236 (Idaho 2000). See Blaha v. Eagle City Council, 9 P.3d 1234 (Idaho
2000)(The court found that the city's order was only an interlocutory order and therefore not appealable).
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The court first found that the board had the power to grant the variances relating to the intersection design standards, although that was
not one of the express powers granted to counties to issue variances.
As to the city's street width standards, the court found that the private
road should be governed by the county's standards and not the city's,
so that no variance was actually needed. In resolving the potential intergovernmental conflict because the plat is located in an area of impact
for the city, the court determined that the county has the exclusive
power to review and approve plats in that area. The city's review must
only be advisory in nature because to give it veto authority would be
to infringe on the "constitutional rights" of the county. The court interpreted its state constitution as creating dual sovereign bodies, the
county and the city, neither of which could infringe upon the sovereign
powers of the other within one's territorial limits.
[n] CITY OF COLORADO SPRINGS v. SECURCARE SELF
STORAGE, INC. 246
An owner of a 4.4-acre tract sought to develop by constructing miniwarehouses for self-storage. It received administrative approval for the
initial development plan in 1995. It modified the plan shortly thereafter
to add a service station on a I-acre portion of the tract. The amended
plan was submitted to the planning commission for its approval. After
hearing local opposition, the commission rejected the plan finding it
incompatible with the surrounding residential neighborhood. The zoning ordinance, however, zoned the tract for commercial uses, including
both types of proposed uses. The city council upheld the commission's
denial of the development plan. The owner sought judicial review.
The procedural posture of the case was governed by Colorado Rule
of Civil Procedure 106(a)(4) that limits review to see if the governmental body exceeded its jurisdiction or abused its discretion. The ultimate issue in this case was whether the city ordinances authorized the
city to deny a development plan for a use permitted by the zoning
ordinance. Thus, the court had to explore the zoning powers of the city.
Colorado Springs is a home rule city giving it nonpreemptible powers
over local or municipal matters, including zoning. Thus, the city had
plenary authority, subject only to other constitutional limitations and
its own charter, to determine how to zone and plan. The zoning ordinance provided for specific districts where uses are either permitted,
conditional, or prohibited. The zoning district here listed miniwarehouses and service stations as permitted uses. In order to develop
246. 10 P.3d 1244 (Colo. 2000).
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land one must receive a building permit for any structure. Building
permits require the receipt of development plan approval before they
can be issued. The procedural and substantive requirements for development plan approval were set forth in the ordinance. The planning
commission was given the specific authority to review development
plans applying a compatibility criteria. In looking at these zoning ordinances as a whole, the court interpreted them to allow the commission
to review and then deny development plans that do not meet the criteria
listed in the ordinance. Otherwise, the development plan review system
would be superfluous for permitted uses. There was no ordinance language exempting permitted uses from the development plan review
process. There is no absolute right to operate a permitted use under the
zoning ordinance. 247
[0] IN RE APPEAL OF BUSIK248
The Busiks own a 83.23-acre tract of land located in a rural-residential
zone. In 1991 they submitted a preliminary plat to subdivide their parcel
into seven residential lots. They agreed to a condition imposed by the
township to enter into an agreement with a neighboring landowner with
respect to the terms and conditions governing the use of a road that
traverses both of their parcels. With that and other conditions, the township approved the preliminary plat. The Busiks were able to comply
with all of the conditions except the one requiring an agreement with
the neighbors. They sought final plat approval and requested to have
that condition removed. The township approved the final plat, but still
made it subject to the agreement condition.
The court determined that both the preliminary and final plat decisions are appealable under Pennsylvania law. If the Busiks were concerned about the agreement condition, they should have challenged the
imposition of that condition within the time frame allowed following
the approval of the preliminary plat. By failing to challenge the preliminary plat decision and, in essence, accepting all of the conditions, the
subdivider waived his right to challenge those conditions in the future.
Even though the Busiks attempted to negotiate in good faith with their
neighbors, they cannot attack the validity of the condition at this point
247. The court had to distinguish several cases that suggested that permitted uses
had to be allowed. See Sherman v. Colorado Springs Planning Comm'n, 763 P.2d 292
(Colo. 1988); Sherman v. Colorado Springs Planning Comm'n, 680 P.2d 1302 (Colo.
Ct. App. 1983); Western Paving Constr. Co. v. Bd. of County Comm'rs, 181 Colo. 77,
506 P.2d 1230 (1973). Two dissenting justices argued that land-use ordinances should
be construed in favor of allowing the free use of land and thus pennitted uses should
be allowed "as of right." Colorado Springs, 10 P.3d at 1253-54 (Kourlis, J. dissenting).
248. 759 A.2d 417 (Pa. Cornrnw. Ct. 2000).
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in the review process. The court noted that the Busiks were in a difficult
position since they would have had to challenge the preliminary plat
decision within thirty days, hardly enough time to see whether they
could comply with the condition. But the court would not rescue a party
from accepting what they now believe to be imprudent conditions.
[p] MADISON RIVER R. V. LTD. v. TOWN OF ENNIS249
In April 1998, plaintiff sought preliminary plat review to build a campground for seventy-three recreational vehicles. The planning board recommended that the application be denied because it was incomplete
and would create substantial traffic and sewage problems. The application was forwarded to the town council. Plaintiff sought to have one
councilman recuse himself because of his alleged bias against the project. The councilman refused to recuse himself. The council voted to
deny the application.
The court found that the councilman was not required to recuse himself because the evidence was not clear that he had prejudged the case
or that he had an economic interest in the outcome. The pre-hearing
comments by the councilman were equivocal in tone and raised legitimate questions about some of the possible negative externalities that
would arise if the development was approved. Under Montana law the
town was required to give a written statement specifying the reason for
the denial of the preliminary plat. The thirty-day time period for filing
an appeal does not begin to run until that statement was filed. Thus,
the fact that the statement was filed after the complaint was filed by
the plaintiff in this case would not affect the outcome. The court found
that the trial court had not violated the plaintiff's due process rights by
failing to hold a hearing. It had been the position of the plaintiff that
review was on the record for which no new evidence would be allowed.
As such there was no constitutional requirement for a hearing. The court
further found that the town's decision was not arbitrary, capricious, or
unlawful. While there was some debate as to the traffic and sewage
impacts, there was enough evidence to support the town's denial decision. Finally, the court rejected the plaintiff's regulatory takings claim
because insufficient facts were alleged to show that the value or the
usefulness of the property has been substantially diminished. There
were no allegations that the plat denial had the effect of denying all
economically beneficial use to the parcel in question.
249. 994 P.2d 1098 (Mont. 2000).
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